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CADET   ARMORY,    BOSTON 


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SOME  REMINISCENCES 


By 

WILLIAM  L.  ROYALL 


- 


New  York  and  Washington 

THE  NEALE  PUBLISHING  COMPANY 

1909 


Copyrighted,  1909,  by 
THE  NEALE  PUBLISHING  COMPANY 


CONTENTS 

CHAPTER  PAGE 

I     The   War    9 

II     Events  in  Richmond — Duelling    6$ 

III  The  State  Debt — The  Presidency  ....  ioo 

IV  The  Trusts    154 

V     Free  Silver  and  Politics 195 


Digitized  by  the  Internet  Archive 

in  2012  with  funding  from 

University  of  North  Carolina  at  Chapel  Hil 


http://archive.org/details/somereminiscenceroya 


SOME  REMINISCENCES 


CHAPTER    I 


THE  WAR 


I  was  born  on  November  15,  1844,  at  my 
father's  place,  Mount  Ephraim,  in  the  lower  end 
of  Fauquier  County,  Virginia.  Our  home  was,  in 
summer,  the  most  beautiful  place  I  have  ever  seen. 
It  was  a  large  brick  house  situated  upon  a  com- 
manding bluff  directly  on  the  Rappahannock  River, 
with  broad  low  grounds  directly  in  front  and  high 
bluffs  heavily  timbered  upon  the  Culpeper  side  of 
the  river,  with  the  Blue  Ridge  Mountains  looming 
up  some  forty  miles  away.  We  were  comfortably 
well  off,  owning  some  fifteen  slaves,  a  farm  of  one 
thousand  acres,  with  enough  money  at  interest  to 
supply  us  with  what  the  farm  did  not  furnish.  It 
was  an  ideal  home  and  a  happy  one. 

My  grandmother,  who  was  Chief  Justice  Mar- 
shall's youngest  sister,  lived  with  us.  When  she 
was  a  young  girl  she  married  George  Keith  Taylor, 
a  very  distinguished  lawyer  of  Petersburg,  Vir- 
ginia. John  Adams  appointed  him  one  of  his 
midnight  judges.  I  have  always  thought  that 
those  judicial  appointments  testify  powerfully  to 
the  influence  that  John  Marshall  had  even  so  early 


io  SOME  REMINISCENCES 

as  that.  Adams  appointed  his  brother-in-law  one 
of  these  judges,  his  brother  another,  and  gave  the 
plum  to  John  himself. 

My  grandmother  was  the  most  intellectual  per- 
son that  I  have  ever  known.  She  lived  in  our  fam- 
ily until  1867,  when  she  died  at  the  age  of  eighty- 
five.  I  was  raised  at  her  knee  and  she  taught  me 
all  that  I  ever  learned  during  the  school  period. 
Sir  John  Falstaff  says,  "If  I  know  what  the  inside 
of  a  church  is  made  of,  I  am  a  pepper-corn."  I 
can  say  the  same  of  a  schoolhouse.  I  have  never  to 
this  day  seen  the  inside  of  one.  My  grandmother 
hated  Thomas  Jefferson  as  if  he  had  been  the 
Devil,  and  in  that  I  have  no  doubt  she  reflected 
the  views  of  the  Chief  Justice.  But  at  any  rate, 
she  thought  him  the  embodiment  of  all  evil.  I 
have  heard  her  often  denounce  him  as  centering  in 
himself  all  that  was  dangerous  to  the  American 
people.     Federalism  versus  Democracy. 

In  i860  the  people  of  Virginia  were  strongly  in 
favor  of  the  Union.  But  when  Mr.  Lincoln  called 
for  troops  to  coerce  the  States  south  of  us,  opinion 
in  Virginia  changed  in  the  twinkling  of  an  eye. 
The  entire  population  became  unanimous  for  sid- 
ing with  the  States  to  the  south  and  resisting 
coercion  to  the  death. 

In  March,  1862,  at  the  age  of  seventeen,  I  vol- 
unteered as  a  Confederate  soldier,  joining  Com- 
pany A,  Ninth  Virginia  Cavalry.     From  the  foun- 


SOME  REMINISCENCES  n 

dation  of  the  colony  Virginians  have  been  devoted 
to  fine  horses,  and  in  1861  the  State  was  as  well 
supplied  with  throroughbred  and  partially  thor- 
oughbred horses  as  with  sheep  and  cattle.  The 
half-bred  horse  is  the  best  for  a  saddle  horse.  In 
the  Confederate  cavalry  the  men  furnished  their 
own  horses,  the  government  agreeing  to  pay  for 
them  if  they  were  killed.  The  young  men  in  Vir- 
ginia were  all  perfect  horsemen,  and  mounted  on 
their  thoroughbred  or  half-bred  horses  they  made 
a  magnificent  spectacle  in  regimental  formation. 

My  regiment  was  as  fine  as  any  in  the  Confed- 
erate service,  and  our  colonel  was  Wm.  H.  F.  Lee, 
a  splendid  officer,  and  son  of  Gen.  Robert  E.  Lee. 
We  were  very  proud  of  this. 

How  the  Confederate  cavalry  performed  the 
feats  it  did  perform  in  the  early  part  of  the  war  is 
more  than  Lean  comprehend,  for  not  one  company 
in  ten  had  any  arms  that  were  fit  to  fight  with. 
When  I  joined  my  company  I  was  given  a  saber 
which  I  think  was  used  in  the  Revolution,  and  this 
was  the  only  weapon  given  me.  One  day  in  June, 
1862,  while  my  regiment  was  standing  in  a  road 
I  bantered  a  comrade  to  see  which  of  us  could  cut 
the  largest  twig  from  a  tree.  I  made  a  powerful 
cut  and  the  blade  of  my  saber  broke  off  at  the  hilt. 
In  a  short  time  we  were  dismounted  and  ordered  to 
clear  the  Yankees  out  of  a  piece  of  woods  in  skir- 
mish formation.    We  marched  through  the  woods, 


12  SOME  REMINISCENCES 

but  fortunately  no  Yankees  were  there.  I  have 
often  wondered  what  I  should  have  done,  armed 
with  that  saber  hilt,  if  I  had  met  a  Yankee  armed 
with  a  Springfield  musket.  A  comrade  to  whom  I 
mentioned  this  said  he  knew  what  I  would  have 
done — I  would  have  turned  around  and  run  like 
smoke,  and  I  suspect  he  was  right. 

I  was  in  the  Seven  Days'  battles  around  Rich- 
mond, in  Second  Manassas,  in  Sharpsburg  or  An- 
tietam,  in  Fredericksburg,  and  in  Chancellorsville, 
besides,  in  that  same  time,  in  a  hundred  cavalry 
battles,  many  of  which  would  have  been  called 
"great  battles"  in  the  Cuban  war. 

I  cannot  help  pausing  to  refer  to  one  of  these, 
the  battle  of  Brandy  Station  or  Fleetwood,  on 
June  9,  1863.  That  was  a  fight  to  stir  the  heart 
of  any  soldier.  Gen.  J.  E.  B.  Stuart,  commander 
of  the  cavalry  of  Gen.  Lee's  army  and  in  many  re- 
spects the  greatest  cavalry  soldier  that  ever  lived, 
had  collected  all  of  his  cavalry  in  the  great  plains 
that  lie  between  Culpeper  Court  House  and  Brandy 
Station.  The  Confederate  army  was  then  engaged 
in  the  movement  from  Fredericksburg  by  way  of 
Culpeper  Court  House  to  the  Valley  of  Virginia  to 
move  forward  to  Gettysburg,  Pennsylvania. 

On  June  7  Stuart  ordered  out  his  whole  com- 
mand, more  than  eight  thousand  horsemen,  to  pass 
in  review  before  Gen.  Robert  E.  Lee.  It  was  a 
noble  sight,  a  sight  that  no  one  could  ever  forget. 


SOME  REMINISCENCES  13 

Next  morning  Stuart  was  hastily  summoned  to 
move  down  to  the  Rappahannock  River  to  face 
General  Pleasanton,  who  was  crossing  with  all  the 
cavalry  of  the  Army  of  the  Potomac,  supported  by 
several  brigades  of  infantry,  in  an  effort  to  pene- 
trate the  operations  known  to  be  going  on  in  Gen- 
eral Lee's  army.  This  resulted  in  an  all-day  battle 
on  June  9  between  the  cavalry  forces  of  the  two 
armies.  It  was  a  great  battle,  nobly  supported  by 
both  sides.  One  incident  of  it  has  remained  viv- 
idly impressed  upon  my  mind.  Our  colonel,  W. 
H.  F.  Lee,  had  been  promoted  to  brigadier-general, 
and  my  regiment  was  in  his  brigade.  About  4 
o'clock  in  the  afternoon  Lee  put  himself  at  the 
head  of  my  regiment  which  was  at  the  foot  of  a 
hill  out  in  the  open  field,  standing  in  column  of 
fours,  and  gave  the  order  to  charge  up  the  hill,  he 
riding  at  the  head  of  the  regiment.  I  was  very 
near  to  the  head  of  the  column  and  could  see  all 
that  took  place.  When  we  got  to  the  summit  of 
the  hill,  there,  some  two  hundred  yards  away,  stood 
a  long  line  of  blue-coated  cavalry.  Lee  did  not 
hesitate  an  instant  but  dashed  at  the  center  of  this 
line  with  his  column  of  fours.  The  Yankees  were 
of  course  cut  in  two  at  once,  but  each  of  their 
flanks  closed  in  on  our  column,  and  then  a  most 
terrible  affray  with  sabers  and  pistols  took  place. 
We  got  the  best  of  it,  and  we  had  soon  killed, 
wounded,  or  captured  almost  ail  of  them.     They 


i4  SOME  REMINISCENCES 

had  a  good  many  more  men  over  beyond  the  hill, 
but  the  thing  was  over  before  the  others  could 
come  to  their  assistance. 

We  drew  off  back  under  the  hill  and  then  com- 
menced to  take  stock  of  the  situation.  It  at  once 
appeared  that  Capt.  Tom  Towson,  captain  of  my 
company,  was  missing.  The  major  of  the  regi- 
ment called  for  two  volunteers  from  my  company 
to  go  up  on  the  hill  and  hunt  for  Captain  Towson. 
Robert  W.  Monroe  and  myself  rode  out  and  said 
we  would  do  it.  We  went  up  there  in  plain  sight 
of  the  enemy,  but  seeing  that  we  were  on  an  errand 
of  mercy  not  a  shot  was  fired  at  us.  We  found 
Towson  stone  dead,  and  I  brought  him  down  be- 
fore the  whole  regiment  across  the  neck  of  my 
horse.  I  mention  this  last  incident  because  I  have 
heard  of  a  braggart  member  of  my  company  telling 
that  he  and  I  did  this  thing,  when  Monroe  and  I 
did  it.  He  saw  me  come  down  the  hill  with  Tow- 
son, and  long  after  the  war,  when  he  thought  most 
of  the  witnesses  were  dead,  he  thought  he  would 
be  safe  in  playing  the  hero  of  the  event. 

This  was  the  beginning  of  the  movement  to  Get- 
tysburg. The  infantry  and  artillery  crossed  the 
Blue  Ridge  range  of  mountains  into  the  Valley  of 
Virginia,  and  the  cavalry  remained  upon  the  east- 
ern side  of  the  mountains  to  mask  the  movement. 
We  moved  along  up  into  the  upper  part  of  Fau- 


SOME  REMINISCENCES  15 

quier  and  Loudoun  counties.  When  we  had  got  to 
Aldie  in  Loudoun  County,  General  Pleasanton,  at 
the  head  of  all  the  cavalry  of  the  Army  of  the  Po- 
tomac, thought  it  was  time  for  him  to  be  looking 
into  the  case,  and  he  attacked  us  furiously  there. 
We  had  two  or  three  days  of  tremendous  cavalry 
battles,  in  which  the  success  of  each  side  was  about 
the  same,  and  many  gallant  men  lost  their  lives. 
Finally  Pleasanton  drew  off  without  having  got  up 
on  the  Blue  Ridge  Mountains  to  see  what  was  go- 
ing on  in  the  valley  below. 

Then  General  Stuart  marched  off  on  what  I  have 
always  thought  the  wildest  of  wild-goose  chases. 
Why  such  a  splendid  soldier  as  Stuart  should  have 
done  it  passes  my  comprehension.  Obviously  the 
thing  for  him  to  do  was  to  put  himself  upon  Gen- 
eral Lee's  right  flank,  between  him  and  his  enemy, 
to  inform  General  Lee,  as  far  as  possible,  of  what 
that  enemy  was  doing.  But  Stuart  marched  away 
from  Lee  around  the  Army  of  the  Potomac,  and 
was  entirely  lost  to  Lee  for  a  week  or  more.  If 
any  one  will  take  a  map  of  Virginia,  Maryland,  and 
Pennsylvania  and  trace  Stuart's  course  I  feel  confi- 
dent he  will  be  amazed  at  it.  When  he  saw  that 
Pleasanton  had  abandoned  his  attempt  to  interfere 
with  Lee,  Stuart  was  near  Paris  Gap  in  Fauquier 
County.  He  set  out  and  marched  straight  to 
Brentsville  in  Prince  William  County,  thence  he 
struck  out  for  the  Potomac  at  Rowson's  Ford,  near 


16  SOME  REMINISCENCES 

Rockville,  Maryland,  and  from  there  to  Hanover, 
Pennsylvania,  where  he  had  a  severe  battle  with 
the  enemy's  cavalry,  and  thence  he  made  his  way 
to  Gettysburg,  where  he  joined  General  Lee  on  the 
second  day  of  the  battle. 

I  consider  myself  qualified  to  speak  as  an  expert 
on  the  battle  of  Gettysburg.  I  became  so  qualified 
in  this  manner:  In  1895  I  was  the  editorial  writer 
of  the  Richmond  Times.  In  one  of  my  articles  I 
spoke  of  the  unparalleled  heroism  of  Pickett's 
charge  of  Virginians  at  Gettysburg.  Some  North 
Carolinians  took  me  up  on  this  and  said  I  was  as- 
cribing to  Virginians  credit  that  belonged  to  North 
Carolinians.  I  was  very  much  shocked  at  this,  and 
for  two  reasons.  I  had  always  understood  that 
Pickett's  Virginians  had  carried  off  the  honors  of 
the  day,  and  I  did  not  like  to  see  these  honors  torn 
from  my  fellow  Virginians.  Again,  the  idea  of 
having  done  an  injustice  to  my  comrades  from 
North  Carolina  stung  me  very  acutely.  I  resolved 
therefore  to  study  Gettysburg  and  find  out  the 
facts.  I  got  the  records  and  carefully  studied 
every  line  that  had  been  written  about  it,  and  at  the 
end  I  felt  that  I  knew  my  ground  and  could  speak 
with  confidence  upon  every  phase  of  the  battle.  I 
accordingly  wrote  an  address  upon  the  battle,  and 
the  Confederate  Army  and  Navy  Society  of  Mary- 
land coming  to  know  of  it,  invited  me  to  deliver  it 
before  them  in  Baltimore  and  I  did  so  on  the  even- 
ing of  January  20,  1896. 


SOME  REMINISCENCES  17 

I  have  received  two  compliments  upon  this  ad- 
dress which  I  prize  very  highly.  I  sent  a  copy  of 
it  to  Lord  Wolseley,  at  that  time  commander-in- 
chief  of  the  English  army,  and  he  wrote  me  a  very 
nice  letter  about  it,  in  which  he  asked  me  to  let  him 
have  it  published  in  the  United  Service  Magazine, 
the  mouthpiece  of  the  English  Army  and  Navy. 
It  can  be  readily  imagined  that  I  gave  my  consent, 
and  it  was  published  in  that  magazine  for  April 
and  May,  1897,  but  was  credited  to  W.  S.  Reyall, 
First  Virginia  Cavalry — the  glory  of  war,  to  have 
your  leg  shot  off  and  have  your  name  misspelled 
in  the  Gazette ! 

The  other  compliment  was  this.  The  late  his- 
torian, John  C.  Ropes  of  Boston,  was  an  intimate 
friend  of  Capt.  W.  Gordon  McCabe  of  Richmond. 
Shortly  before  his  death  he  paid  McCabe  a  visit 
of  several  weeks,  and  myself  and  Judge  James 
Keith,  Chief  Justice  of  Virginia,  called  upon  him. 
Ropes  had  read  my  address,  and  he  spoke  to 
me  of  it  in  very  complimentary  terms,  saying  he 
had  filed  it  away  amongst  his  choicest  pamphlets 
for  future  use  and  reference.  When  Judge  Keith 
and  I  told  Ropes  that  we  had  both  served  as  pri- 
vates in  the  Confederate  Army,  and  that  all  of  our 
fellows  had  done  the  same,  he  was  immensely  sur- 
prised and  said  that  fact  gave  him  more  informa- 
tion about  the  Confederate  armies  than  all  he  had 
ever  read. 


18  SOME  REMINISCENCES 

What  I  am  going  to  say  now  about  Gettysburg 
in  a  condensed  form  can  be  seen  in  detail  in 
that  address,  with  reference  to  official  documents 
to  sustain  every  statement.  Incidentally  I  will  say 
here  that  General  Lee  was  considerably  outmatched 
in  the  battle.  He  had  62,000  men  while  General 
Meade  had  105,000. 

The  absence  of  General  Lee's  cavalry  caused 
the  battle  to  come  on  through  pure  accident,  and 
without  any  preparations  or  plans  for  it.  Heth's 
division  of  Hill's  corps  having  arrived  near  Get- 
tysburg on  July  1,  undertook  to  march  into  the 
town  to  get  some  shoes.  Just  outside  the  town  they 
met  Buford's  division  of  Federal  cavalry,  and  a 
brisk  skirmish  commenced.  The  rest  of  Hill's 
corps  was  steadily  arriving  and  Ewell's  corps,  re- 
turning from  York,  commenced  arriving  at  the 
same  time.  On  the  Union  side  the  First  and  Elev- 
enth Corps  were  up,  and  they  joined  with  Buford 
in  repelling  the  attack,  so  that  in  a  short  time  there 
was  a  very  brisk  action  in  progress  between  from 
twenty  to  twenty-five  thousand  men  on  each  side. 
The  battle  was  splendidly  fought  on  both  sides, 
but  ended  in  a  complete  triumph  for  the  Confed- 
erates, the  First  and  Eleventh  Corps  being  almost 
destroyed.  There  were  not  more  than  six  thousand 
of  these  two  corps  available  for  duty  when  the 
battle  was  over. 

General  Lee  arrived  upon  the  field  just  at  the 


SOME  REMINISCENCES  19 

conclusion  of  the  battle,  and  saw  the  remnants 
of  the  First  and  Eleventh  Corps  scampering  over 
the  hills  behind  Gettysburg.  While  he  was  stand- 
ing in  the  field  watching  this  interesting  spectacle 
General  Longstreet  rode  up  and  reported.  On 
being  asked  how  near  his  corps  was  he  replied  that 
he  could  have  two  divisions,  Hood's  and  McLaw's, 
up  for  business  by  daylight  next  morning,  but  that 
Pickett's  division  was  nearly  a  day's  march  behind. 
General  Lee  told  him  then  and  there  to  get  his 
men  up  as  quickly  as  possible,  as  he  intended  to 
attack  the  enemy  next  morning  at  daylight  if  he 
was  there. 

The  situation  next  morning,  July  2,  was  this. 
The  Twelfth  Corps  of  the  Union  army  arrived 
during  the  night  and  went  into  line  at  Meade's  ex- 
treme right  on  Culp's  Hill.  Their  line  was  ex- 
tended round  the  curve  by  the  remnants  of  the 
First  and  Eleventh  Corps  and  there  was  nothing 
else  from  their  left  to  Round  Top.  About  eight 
thousand  of  the  Third  Corps  arrived  at  General 
Meade's  left  during  the  night  and  went  in  bivouac. 
This  was  the  whole  Federal  force  on  the  field  for  a 
battle  at  early  morn  on  the  second.  They  made 
about  twenty-five  thousand  men,  with  an  unfilled 
gap  in  their  line  between  Round  Top  and  the  left 
of  the  Eleventh  Corps. 

What  was  General  Lee's  situation?  All  of 
Hill's  and  Ewell's  corps  were  up  and  in  line,  and 


20  SOME  REMINISCENCES 

two-thirds  of  Longstreet's  corps  were  near  enough 
to  be  in  line  at  daylight.  In  some  way  Lee  had 
become  possessed  of  the  information  that  but  a 
small  part  of  Meade's  army  had  arrived  at  Gettys- 
burg, and  he  determined  to  attack  them  at  daylight 
on  the  morning  of  the  2nd.  He  gave  the  neces- 
sary orders  to  Ewell  and  Hill,  and  having  person- 
ally told  Longstreet  on  the  afternoon  of  the  ist  to 
get  his  command  up  by  light  next  morning,  he 
rested  on  his  oars  waiting  for  Longstreet's  men  to 
arrive.  Next  morning  he  was  up  and  had  break- 
fast when  day  broke.  About  light  Longstreet  ar- 
rived with  his  two  divisions  and  Lee  ordered  him 
to  get  ready  and  attack  Meade's  line  between 
Round  Top  and  Gettysburg.  But  as  Pickett  was 
not  up  Longstreet  did  not  want  to  make  the  attack, 
so  he  entered  into  a  warm  argument  with  Lee  in  an 
endeavor  to  persuade  him  to  postpone  the  attack. 
He  upset  Lee's  resolution  and  caused  the  attack  to 
be  postponed  until  four  in  the  afternoon,  at  which 
time  all  of  General  Meade's  army  was  up,  and  the 
whole  advantage  that  had  accrued  to  the  Confed- 
erates from  the  situation  in  the  morning  had  dis- 
appeared. General  Longstreet  is  responsible,  there- 
fore, for  General  Lee's  failing  to  inflict  an  awful 
disaster  on  General  Meade  on  the  morning  of  July 
2,  perhaps  the  utter  destruction  of  his  army.  If 
Longstreet  had  done  what  Lee  wanted,  the 
Twelfth    Corps,   the   remnants   of  the    First   and 


SOME  REMINISCENCES  21 

Eleventh  Corps,  and  the  two  divisions  of  the 
Third  Corps  would  have  been  routed  by  5  o'clock. 
The  Second,  Hancock's  force,  arrived  on  the  field 
of  battle  at  7  A.  m.  and  it  would,  of  course,  have 
been  routed  in  a  very  short  time.  The  Fifth 
Corps  began  to  arrive  at  8  A.  M.  and  it  would  have 
met  the  same  fate.  The  Sixth  did  not  begin  to  ar- 
rive until  the  afternoon,  so  that  Lee  would  have 
fought  Meade's  army  by  fragments  with  the  whole 
of  his  own  army.  The  result  of  such  a  conflict 
cannot  be  a  matter  of  doubt.  General  Longstreet, 
therefore,  by  his  contumacy  (the  word  is  not  too 
strong)  lost  the  Confederates  the  battle  of  Gettys- 
burg on  July  2.  He  equally  lost  it  for  them  on 
July  3,  but  before  showing  this  there  is  an  outside 
matter  I  wish  to  relate. 

General  Longstreet  did  not  attack  until  4  p.  M., 
July  2.  But  when  he  did  attack  he  fought  one  of 
the  most  splendid  battles  that  ever  was  fought. 
Longstreet  was  a  great  soldier  on  the  field  of 
battle.  His  defect  was  obstinacy  and  procrastina- 
tion, but  when  once  engaged  all  of  that  generally 
disappeared  and  he  was  usually  as  prompt  and 
fiery  as  Stonewall  Jackson  himself.  On  the  after- 
noon of  July  2  he  handled  his  adversaries  so 
roughly  that  they  were  very  glad  when  nightfall 
came  on. 

Now  General  Meade  had  never  been  satisfied 
with  the  position  at  Gettysburg.     He  was  in  posi- 


22  SOME  REMINISCENCES 

tions  forced  on  him  by  chance  and  never  selected 
by  him.  During  the  night  of  July  2  he  called  a 
council  of  war  of  his  chief  generals  and  told  them 
plainly  that  he  thought  the  army  should  abandon 
its  position  and  get  to  another  nearer  its  base  of 
supplies.  It  is  said  that  a  majority  of  the  generals 
wanted  to  stay  there  and  fight  it  out  but  the  last 
thing  Meade  said  to  them  was,  "This  is  no  place 
to  fight  a  battle."  Whilst  he  was  in  this  hesitating 
mood  an  incident  occurred  that  determined  him  to 
stay  at  Gettysburg  and  fight  it  out. 

When  General  Lee  started  on  his  trip  to  Gettys- 
burg he  wrote  Mr.  Davis  urging  that  every  soldier 
that  could  be  spared  in  other  parts  of  the  Confeder- 
acy should  be  collected  at  Culpeper  Court  House 
under  the  command  of  General  Beauregard  to 
make  a  threatening  demonstration  against  Wash- 
ington. Even  "the  effigy  of  an  army"  (his  words) 
with  Beauregard's  name  attached  to  it  would  afford 
him  great  relief.  General  Lee  was  so  intent  upon 
this  that  the  last  thing  he  did  before  crossing  the 
Potomac  was  to  write  another  letter  to  Mr.  Davis 
urging  that  this  should  be  done. 

There  was  every  reason  in  the  world  why  Mr. 
Davis  should  have  done  what  General  Lee  asked. 
In  the  first  place  it  was  obviously  the  right  thing 
to  do.  In  the  second  place,  General  Lee  wanted  it 
done  and  whatever  he  wanted  done  should  have 
been  done  if  it  were  possible  to  do  it.     He  was 


SOME  REMINISCENCES  23 

undertaking  one  of  the  great  events  in  the  world's 
history  with  means  utterly  inadequate  to  the  end, 
and  whatever  he  asked  for  in  the  way  of  assistance 
should  have  been  given  him  if  it  were  possible. 
The  student  of  the  records  will  find  that  there  were 
35,000  soldiers  and  125  guns  along  the  coast  that 
could  have  been  easily  put  at  Culpeper  Court 
House  before  July  1,  as  I  show  further  on.  It  was 
inexcusable  in  Mr.  Davis  to  make  no  effort  to 
carry  out  General  Lee's  wish.  Instead  of  doing 
this,  he  wrote  General  Lee  telling  him  it  was  im- 
possible to  do  what  he  wished,  and  trusted  it  to  a 
single  cavalryman  to  carry  it  through  a  hostile 
country  to  General  Lee. 

One  of  the  leakiest  things  in  the  world  was  the 
Confederate  War  Office,  and  Lee  had  hardly  asked 
for  this  force  to  be  put  at  Culpeper  Court  House 
before  it  was  known  in  Washington,  and  Meade 
fought  the  first  two  days'  battles  with  the  fear  of 
an  attack  upon  his  rear  haunting  him.  Ulric 
Dahlgren,  son  of  the  Admiral,  was  an  adventurous 
young  captain  of  twenty-one  on  Meade's  staff. 
While  the  battle  was  in  progress  he,  with  a  small 
command,  was  scouting  in  rear  of  the  Confederate 
army,  and  he  fell  in  with  Mr.  Davis's  courier  in 
the  streets  of  Greencastle  and  searched  him  and 
got  his  letter.  On  reading  the  letter  he  saw  the  im- 
portance of  getting  it  to  General  Meade,  and  so 
he  rode  hard  and  handed  it  to  him  just  as  the 


24  SOME  REMINISCENCES 

council  of  war  ended.  The  probabilities  all  are  that 
Meade  was  going  to  change  his  position  at  Gettys- 
burg, leaving  the  Confederates  the  moral  effect  of 
a  great  victory  gained  there,  but  that  this  informa- 
tion relieving  him  from  all  fear  as  to  his  rear,  de- 
termined him  to  stay  there  and  fight  the  third  day's 
battle. 

General  Longstreet  caused  the  Confederates  to 
lose  the  third  day's  battle  by  not  carrying  out  Gen- 
eral Lee's  orders  to  him.  Lee  directed  that  artillery 
should  be  sent  in  front  of  the  infantry  that  charged 
the  Federal  line.  If  this  had  been  done  the  terrific 
artillery  fire  that  decimated  Pickett's  division 
would  all  have  fallen  on  this  artillery,  and  when 
Pickett's  division  got  to  the  stone  wall,  instead  of 
being  a  mere  fragment  of  itself  it  would  have  been 
in  full  force.  As  it  was,  it  cut  through  the  Federal 
line.  What  might  not  have  been  the  result  if  it 
had  been  united  with  Anderson's  division  directly 
behind  it  as  General  Lee  expected  would  be  the 
case,  to  make  good  what  it  had  won?  But  to 
understand  all  this  my  lecture  must  be  read  as 
printed. 

There  is  one  curious  thing  about  this  matter. 
The  North  Carolinians  say  they  went  farthest 
at  Gettysburg.  But  General  Longstreet  says  in 
his  official  report  that  they  went  to  pieces  under  the 
artillery  fire  in  crossing  the  field  and  that  their 
principal  losses  were  incurred  in  quitting  their 
work. 


SOME  REMINISCENCES  25 

Before  leaving  the  war  there  are  one  or  two 
phases  and  incidents  of  it  that  I  wish  to  record. 
I  missed  Gettysburg,  and  how  I  missed  it  opens  up 
a  much  debated  question  and  that  question  is, 
whether  or  not  General  J.  E.  B.  Stuart  is  to  blame 
for  not  being  there  with  General  Lee  when  he  ar- 
rived there.  My  good  friend,  Colonel  John  S. 
Mosby,  the  famous  partisan  ranger,  has  written  a 
great  deal,  and  especially  a  most  interesting  book 
recently  published,  to  prove  that  Stuart  was  not  to 
blame  for  not  being  there,  and  that  his  absence 
caused  no  injury  to  Lee.  Notwithstanding  all  he 
has  said,  however,  I,  for  one,  am  of  the  opinion 
that  Stuart  ought  to  have  crossed  the  Potomac  at 
Shepherdstown  and  ridden  on  Lee's  right  flank 
all  the  way.  The  man  is  a  fool  that  contends  that 
Stuart  disobeyed  orders  in  riding  around  the  Fed- 
eral army.  General  Lee's  orders  to  him  plainly 
permitted  him  to  do  this,  but  the  point  is  that 
Stuart  ought  not  to  have  exercised  the  discretion 
conferred  upon  him.  His  hard  horse  sense  ought  to 
have  told  him  to  stick  to  Lee.  That  was  the  place 
where  he  was  wanted.  But  what  I  want  to  point 
out  is  that  the  criticism  of  Stuart  is  really  not  criti- 
cism. It  is  a  lamentation  that  so  great  and  power- 
ful a  man  as  he  was  was  not  at  Lee's  right  hand  to 
counsel  and  advise  with  him  about  what  was  best 
to  be  done. 

While  Lee  was  moving  down  the  Valley  of  Vir- 


26  SOME  REMINISCENCES 

ginia  with  Hooker  absolutely  perplexed  about  his 
whereabouts,  as  I  have  said  before,  Pleasanton 
took  it  into  his  head  to  ride  up  to  the  top  of  the 
Blue  Ridge  Mountains  at  Ashby's  Gap  and  take  a 
peep  over  in  the  valley  to  see  if  Lee  was  really 
there.  But  when  he  got  to  Aldie  and  Middleburg 
he  encountered  Jeb  Stuart  and  his  cavalry  right 
there  for  the  purpose  of  preventing  Mr.  Pleasan- 
ton from  doing  that  identical  thing.  There  was 
tremendous  fighting  there  for  two  or  three  days, 
Stuart  gradually  falling  back  to  the  mountains; 
but  after  awhile  Pleasanton  resolved  to  give  it  up. 
Stuart  then  determined  to  exercise  the  discretion 
that  Lee  had  conferred  upon  him.  He  determined 
to  ride  around  Hooker's  army,  between  him  and 
Washington  City.  He  started  straight  from  Ash- 
by's Gap  toward  Brentville,  some  twenty  or  thirty 
miles.  The  roads  there  are  limestone  pikes.  My 
horse  having  lost  all  of  his  shoes,  he  became  so 
lame,  on  these  limestone  pikes,  that  he  could  not 
travel  at  all.  I  reported  his  condition  to  my  com- 
manding officer  and  asked  him  what  I  should  do. 
He  told  me  to  fall  out  of  ranks  and  go  to  a  black- 
smith's shop  and  get  him  shod,  and  then  to  follow 
along  as  best  I  could.  I  did  this,  and  then  rode 
over  into  the  Valley  of  Virginia  to  follow  in 
General  Lee's  track,  but  before  I  reached  the  army 
the  battle  of  Gettysburg  had  been  fought.  I  do 
not  know,  of  course,  how  many  men  this  ride  cost 


SOME  REMINISCENCES  27 

Stuart,  but  it  is  obvious  that  there  may  have  been 
many  in  my  fix. 

I  have  been  very  harsh  in  my  criticisms  of  Gen- 
eral Longstreet  for  his  part  in  the  battle  of  Gettys- 
burg, but  it  would  be  a  mistake  to  suppose  that 
Longstreet  was  always  an  inefficient  soldier.  Upon 
the  contrary,  when  once  engaged  in  battle  there 
have  been  few  more  superb  soldiers  than  he.  I 
got  that  splendid  gentleman  and  gallant  soldier, 
Col.  Wm.  H.  Palmer,  who  was  Gen.  A.  P.  Hill's 
chief  of  staff,  to  write  me  the  following  account  of 
what  he  witnessed  of  General  Longstreet's  conduct 
in  the  battle  of  the  Wilderness  on  May  6,  1864. 
This  shows  Longstreet  at  his  best,  and  shows  what 
a  magnificent  soldier  he  was  upon  the  field  of 
battle.  He  saved  the  day  then,  and  if  he  had  not 
been  shot  down  by  his  own  men  at  the  critical  mo- 
ment Grant's  army  would  probably  have  been  de- 
stroyed, tangled  up  in  that  wilderness  as  it  was. 
Colonel  Palmer's  letter  is  as  follows : 

Richmond,  Va.,  May  it,  1908. 
Mr.  W.  L.  Royall,  Richmond,  Va. 

Dear  Sir:  I  will  endeavor  to  repeat  a  conversation 
had  with  you  as  to  some  of  the  occurrences  of  the  first 
and  second  days  of  the  battle  of  the  Wilderness  that  came 
under  my  observation. 

We  had  full  notice  of  General  Grant's  movement  from 
around  Culpeper  C.  H.  General  Longstreet's  First 
Corps  wa<5  near  Gordonsville  (lately  returned  from  East 
Tennessee),    General    A.    P.    Hill's    Third    Corps    was 


28  SOME  REMINISCENCES 

around  Orange  C.  H.,  and  General  Ewell's  Second  Corps 
to  the  right  of  Orange  C.  H.  General  Hill  moved  on 
the  plank  road  below  Verdierville,  with  Heth's  and  Wil- 
cox's divisions  on  the  4th  of  May,  Anderson's  division  be- 
ing left  at  Orange  C.  H.  to  protect  our  trains  and  rear. 
Ewell  moved  below  Verdierville  on  our  left,  on  the  old 
Brock  road. 

Our  orders  on  the  5th  were  to  attack  and  press  the 
enemy.  I  remember  that  our  troops  as  they  passed  be- 
yond the  lines  erected  the  previous  winter  at  Mine  Run, 
which  they  expected  to  occupy  as  before,  exclaimed, 
"Mars  Bob  is  going  for  them  this  time,"  and  the  poor 
fellows  cheered  as  they  pressed  forward.  About  a  mile 
beyond  we  came  to  a  heavy  line  of  dismounted  cavalry. 
They  were  picked  men  and  hard  to  move.  We  had  to 
thicken  our  skirmish  line.  The  enemy's  officers  behaved 
with  the  greatest  gallantry,  on  horseback  encouraging  the 
men,  and  exposing  themselves  to  hold  their  line;  finally 
they  gave  way.  We  captured  a  number  of  men,  and  many 
fine  horses,  and  moved  some  distance  below  Parker's  store 
while  waiting  for  Heth's  division  to  form,  as  we  could 
not  drive  them  farther  with  skirmishers,  and  had  left  the 
infantry.  Generals  Lee,  Hill,  and  Stuart  rested  in  a  large 
field  on  the  left  of  the  road  (Trapp's  farm).  Suddenly  a 
force  of  the  enemy,  in  skirmishing  order,  came  out  of  the 
woods  on  the  left.  General  Lee  walked  rapidly  off  to- 
ward Heth's  troops,  calling  for  Colonel  Taylor,  his  adju- 
tant-general. General  Stuart  stood  up  and  looked  the 
danger  squarely  in  the  face;  General  Hill  remained  as  he 
was.  We  were  within  pistol  shot,  when  to  our  surprise 
the  Federal  officer  gave  the  command  "right  about"  and 
disappeared  in  the  timber,  as  much  alarmed  at  finding 
himself  in  the  presence  of  Confederate  troops  as  we  were 
at  their  unexpected  appearance. 

A  little  after  3   o'clock   General   Heth  was  attacked 


SOME  REMINISCENCES  29 

furiously.  Wilcox's  command,  part  of  which  had  been 
sent  into  the  interval  between  Ewell  on  the  Brock  road 
(and  into  which  the  skirmishers  above  described  had 
penetrated),  was  recalled  and  gradually  put  into  action, 
the  Federals  attacking  at  short  intervals  furiously,  all  con- 
cealed by  the  thick  woods  and  underbrush.  The  roar  of 
musketry  was  incessant,  and  was  not  relieved  by  any 
artillery  fire,  nothing  but  deadly  musketry.  We  had  had 
five  of  these  heavy  atacks.  General  Hill  had  moved  six- 
teen guns  of  Poague's  and  Mcintosh's  battalions  into  the 
large  field  (Trapp's  farm)  on  the  left  of  the  road,  and 
close  to  the  infantry  line.  His  attention  was  called  to  the 
fact  that  there  was  no  road  by  which  the  guns  could  be 
moved  if  our  infantry  line  should  be  driven  back.  He 
answered  that  he  knew  this,  but  in  battle  the  guns  must 
take  their  chances  of  capture,  and  would  help  to  hold  the 
line  if  the  emergency  pointed  out  should  occur.  The 
guns  were  not  used  during  the  day.  Near  nightfall  the 
sixth  heavy  attack,  bearing  heavily  on  our  extreme  right, 
commenced — a  turning  movement.  General  Hill  exposed 
himself  to  encourage  the  men,  and  sent  me  for  the  last 
brigade  he  had  in  reserve,  Lane's.  I  found  General  Lane 
putting  his  men  in  a  weak  spot  some  distance  to  the  left, 
where  help  had  been  called  for,  and  part  of  his  brigade 
already  engaged.  He  hesitated  for  a  moment  only,  and 
upon  my  urgent  demand  as  from  General  Hill,  he  fol- 
lowed to  the  extreme  right,  where  he  put  his  troops  in,  as 
he  always  did,  in  perfect  order  and  effectively  stayed  the 
threatened  danger.  I  hurried  back  to  the  point  from 
which  he  had  been  taken,  and  found  it  safe.  As  I  passed 
the  plank  road  General  Stuart  and  Colonel  Venable  were 
sitting  on  their  horses  listening  to  the  increased  roar  of 
battle  on  the  extreme  right,  and  one  of  them  exclaimed, 
"If  night  would  only  come!"  I  explained  that  the  in- 
creased roar  of  battle  came  from  Lane's  brigade  going  in, 


30  SOME  REMINISCENCES 

and  that  they  were  such  steady  troops  that  we  felt  that 
they  could  not  be  driven  off  before  nightfall,  and  Colonel 
Venable  rode  off  to  say  as  much  to  General  Lee.  Still 
later  there  was  an  alarm  from  the  extreme  left,  the  enemy 
pushing  into  the  interval  between  Ewell  and  ourselves. 
There  was  nothing  out  of  the  line  except  the  Fifth 
Alabama  Battalion  (125  strong)  under  Major  Vande- 
graff,  who  had  charge  of  the  prisoners.  They  went  in 
with  a  cheer,  and  whatever  was  before  them  was  driven 
back,  and  night  settled  down  on  the  dreadful  field — our 
lines  all  held. 

It  was  estimated  from  the  prisoners  we  had  from 
different  commands  that  Hill's  two  divisions  of  about 
15,000  had  held  their  ground  in  the  six  attacks  against 
40,000  men.  General  Ewell  sent  word  to  General  Hill 
that  he  had  heard  his  battle,  and  congratulated  him  on 
his  success. 

A  small  fire  was  made  close  to  the  line,  and  near  the 
right  gun  of  Poague's  battalion,  for  the  headquarters  of  the 
Third  Corps  in  the  field  so  often  referred  to,  and  soon 
Generals  Heth  and  Wilcox  came  for  orders.  They  said 
their  lines  in  the  woods  were  like  a  worm  fence,  at  every 
angle,  and  when  they  had  undertaken  to  straighten  them 
the  enemy  had  captured  our  men  and  we  captured  theirs. 
General  Hill  told  them  that  General  Lee's  orders  were 
to  let  the  men  rest  as  they  were;  that  General  Long- 
street  would  be  up  by,  or  soon  after,  midnight,  and  would 
form  in  the  rear  of  the  line  before  daylight;  and  to  let  the 
men  of  the  Third  Corps  fall  back  after  Longstreet's  troops 
were  in  position — Longstreet's  troops  in  the  first  line  for 
the  next  day,  Anderson's  division  of  the  Third  Corps  and 
the  other  divisions  forming  a  second  line. 

After  midnight  General  Hill  rode  to  Parker's  store  to 
see  what  news  General  Lee  had  of  Longstreet.  General 
Wilcox  also  rode  to  Parker's  store.  General  Lee  repeated 
his  orders. 


SOME  REMINISCENCES  31 

What  could  be  done  toward  straightening  our  line  was 
done,  and  the  anxious  night  wore  slowly  away.  The 
men  had  marched  and  fought  all  day  of  the  fifth,  and 
slept  the  sleep  of  exhaustion  on  the  ground  as  the  battle 
left  them  at  9  o'clock  at  night.  We  could  not  sleep, 
but  waited  for  news  of  Longstreet;  for  we  knew  that 
at  the  first  blush  of  the  morning  the  turning  attack  on 
our  right  would  open  with  overwhelming  numbers,  and, 
unsupported,  the  men  must  give  way. 

As  soon  as  it  was  light  General  Hill  rode  to  the  left  to 
examine  the  ground  in  the  interval  between  General 
Ewell's  troops  and  his,  leaving  me  at  the  fire  by  the  right 
gun  of  Poague's  battalion.  Shortly  after  he  left  I  looked 
across  the  field  and  saw  General  Longstreet  loping  his 
horse  across  the  open.  I  had  served  in  his  brigade  with 
the  First  Virginia  Infantry,  and  knew  him  well,  but  had 
not  seen  him  since  his  Chickamauga  and  Knoxville  cam- 
paign. As  I  grasped  his  hand  I  said,  "Ah,  General,  we 
have  been  looking  for  you  since  12  o'clock  last  night. 
We  expect  to  be  attacked  at  any  moment,  and  are  not  in 
any  shape  to  resist."  His  answer,  "My  troops  are  not 
up,  I  have  ridden  ahead,"  was  drowned  in  a  roar  of 
musketry.  He  rode  off  to  form  his  troops  in  the  road,  and 
in  a  moment  General  Hill  returned,  and  together  we  rode 
to  the  main  road.  As  far  as  we  could  see  the  road  was 
crowded  with  the  enemy  moving  forward ;  our  troops 
slowly  and  in  order  retiring,  except  just  at  the  road,  where 
they  were  holding  fast.  General  Hill  directed  me  to  ride 
to  the  guns,  and  to  order  them  to  fire  obliquely  across  the 
road.  McGowan's  brigade  were  for  the  most  part 
through  the  guns  and  forming  behind  them.  There  were 
a  few  of  our  troops  in  front.  General  Hill  said  it  could 
not  be  delayed,  the  guns  must  open.  The  sixteen  guns 
firing,  the  last  one  reaching  the  enemy  far  in  rear,  did 
great   execution,   as  the   road   was   packed   with   Federal 


32  SOME  REMINISCENCES 

troops.  It  was  unexpected,  as  no  artillery  had  been  used 
the  day  before,  except  one  gun  in  the  road,  which  was 
soon  silenced  by  the  enemy's  skirmishers.  It  enabled  us 
to  hold  at  the  road,  and  soon  the  Texas  brigade  of  Long- 
street's  corps  filed  behind  the  guns,  and  as  they  moved 
into  position  General  Longstreet  rode  down  the  line,  his 
horse  at  a  walk,  and  addressing  each  company  said,  "Keep 
cool,  men,  we  will  straighten  this  out  in  a  short  time — 
keep  cool."  In  the  midst  of  the  confusion  his  coolness  and 
manner  was  inspiring.  When  the  Texas  brigade  had 
formed  they  were  moved  through  the  guns.  General  Lee 
rode  on  their  flank.  The  tall  Texan  on  the  left  lifted  his 
hat  and  called  to  General  Lee  to  go  back,  and  it  was 
taken  up  by  the  others.  General  Lee  lifted  his  hat  to 
them,  and  moved  slowly  to  the  rear.  It  did  not  strike  me 
as  remarkable  at  the  time.  The  brigade  was  noted  for 
steadiness  and  courage,  and  had  been  detached  from  him. 
It  had  been  months  since  he  had  seen  them.  There  was 
no  heroic  leading.  He  was  glad  to  be  with  them ;  he  was 
saluting  them.  When  the  Texans  moved  forward  General 
Longstreet  had  no  time  to  form  more  troops  in  front ;  he 
halted  and  faced  his  men  as  they  were  marching  in  the 
road,  and  broke  by  brigades  and  moved  them  in  echelon 
to  meet  the  turning  movement  of  the  enemy.  It  was  a 
beautiful  movement.  The  Texans,  part  of  McGowan's 
and  much  of  Davis's  Mississippi  brigade  under  Colonel 
Stone  and  other  troops  of  Heth  and  Wilcox,  were  holding 
all  the  ground  around  the  guns,  and  to  their  right  across 
the  road ;  and  General  Longstreet's  echelon  movement 
caught  the  sweeping  enemy  and  forced  them  back  steadily 
and  surely.*      In  a  short  time  he  was  master  of  the  field, 

*  I  am  referring  to  the  movement  of  the  first  moments  of  con- 
tact. Later,  Kershaw's  division  was  stretched  out  on  the  right, 
and  Field's  division  on  the  left  of  the  plank  road,  Anderson's 
division  of  the  Third  Corps  supporting.  The  long  interval  next 
to  Ewell  was  protected  by  Heth's  and  Wilcox's  divisions  of  the 


SOME  REMINISCENCES  33 

and  everybody  felt  that  way  about  it.  Nothing  finer  was 
ever  done  on  a  battlefield.  Of  course,  we  of  the  two 
divisions  of  the  Third  Corps  were  sore — after  putting 
up  such  a  battle  the  day  before,  to  have  to  be  found  by 
Longstreet's  troops  retiring,  and  in  more  or  less  confu- 
sion was  dreadful.  They  did  not  know  anything  about 
their  slowness  in  getting  to  the  field.  They  only  knew 
that  with  conspicuous  courage  and  steadiness  they  had 
redeemed  a  losing  battle,  and  saved  the  Army  of 
Northern  Virginia  from  disaster.  It  was  an  inspiring 
homecoming  for  the  First  Corps. 

General  Hill,  with  the  part  of  Heth's  and  Wilcox's 
divisions  not  engaged,  moved  to  the  left  in  the  interval 
between  his  troops  and  Ewell's  to  a  second  large  field, 
screened  from  the  field  in  which  the  guns  were  by  a  strip 
of  woods.  Before  the  troops  came  up  we  rode  to  a  house 
and  outbuildings  in  the  lower  end  of  the  field  and  dis- 
mounted. We  had  been  there  only  a  short  while  when 
we  were  startled  by  the  breaking  down  of  a  fence  just 
below,  and  in  plain  view  was  a  long  line  of  Federal  in- 
fantry clearing  the  fence  to  move  forward.  General  Hill 
commanded,  "Mount,  walk  your  horses,  and  don't  look 
back."  When  near  our  troops  he  directed  me  to  ride  to 
General  Lee  and  say  if  Anderson's  division  had  arrived  he 
wanted  a  brigade  of  that  division  sent  to  him.  Anderson's 
division  had  just  arrived.  (Longstreet  being  late,  had  the 
road,  and  Anderson's  division  of  the  Third  Corps  could 
not  reach  us  until  all  of  Longstreet's  troops  were  out  of 
it.)  The  roar  of  musketry  was  far  extended  as  I  asked  for 
the  brigade,  and  General  Lee  said,  "Well,  let'si  see  Gen- 
Third  Army  Corps.  General  Longstreet  had  for  the  6th  of  May 
battle  on  the  right  about  twenty-one  thousand  enlisted  men.  In 
the  battle  of  the  5th  of  May  on  the  same  ground  General  A.  P. 
Hill  had  only  Heth's  and  Wilcox's  divisions,  about  fifteen  thou- 
sand men,  the  interval  on  our  left  being  unoccupied  and  a  source 
of  anxiety  all  the  afternoon. 


34  SOME  REMINISCENCES 

eral  Longstreet  about  it."  When  we  got  near  him, 
General  Lee  said,  "General  Hill  wants  one  of  Anderson's 
brigades."  General  Longstreet  said  to  me,  "Certainly, 
Colonel;  which  one  will  you  take?"  I  said,  "The  lead- 
ing one,"  and  hurried  back  with  it;  and  General  Hill 
at  once  attacked  the  force  and  broke  it  up,  capturing  many 
prisoners.  As  I  passed  a  group  of  prisoners  an  officer 
asked,  "Were  you  not  at  the  house  a  short  time  ago?" 
I  told  him,  "Yes."  He  abused  his  officers  and  said,  "I 
wanted  to  fire  on  you,  but  my  colonel  said  you  were 
farmers  riding  from  the  house."  Later  I  rode  back 
(everything  being  quiet  on  our  line)  to  the  plank  road, 
and  shook  hands  with  General  Jenkins,  of  the  South 
Carolina  brigade,  with  whom  I  had  been  associated,  and 
who  I  had  not  seen  since  the  Chickamauga  and  East 
Tennessee  campaign  of  the  First  Corps.  Just  at  this  time 
General  Longstreet,  continuing  his  counter-turning  move- 
ment, had  launched  Mahone's,  Wofford's,  and  Anderson's 
brigades  on  the  extreme  left  of  the  enemy,  under  the 
general  direction  of  Colonel  Sorrell,  his  adjutant-general 
and  chief  of  staff.  It  was  in  every  way  successful,  and 
part  of  Mahone's  brigade  reached  the  plank  road  in 
front.  As  General  Longstreet  rode  forward,  General 
Jenkins  accompanying  him,  both  were  shot  by  our  own 
men ;  Jenkins  being  killed,  also  Captain  Dobie,  and 
Orderly  Bowen,  of  Kershaw's  staff.  It  is  hard  to  supply 
the  place  of  any  general  in  direct  charge  of  a  battle,  but 
especially  difficult  in  a  tangled  wilderness,  in  which  we 
were  fighting.  General  Lee  directed  that  the  lines  be 
straightened,  and  we  did  not  attack  again  until  nearly  4 
o'clock  p.  m.,  when  a  part  of  the  enemy's  line  at  the 
Brock  road  was  carried,  but  not  held ;  and  night  settled 
again  on  the  dreadful  battlefield. 

We  had  thrown  up  good  works  along  our  whole  line 
on  the  evening  of  the  6th  and  morning  of  the  7th.    Davis's 


SOME  REMINISCENCES  35 

Mississippi  brigade,  under  Colonel  Stone,  who  had  held 
their  ground,  and  fought  with  Longstreet's  troops,  were 
drawn  from  the  line  on  the  evening  of  the  6th,  and  formed 
in  the  Trapp  field  near  the  guns,  and  were  complimented 
and  thanked  with  earnestness  and  emotion  by  General  A. 
P.  Hill. 

Late  on  the  7th  General  Lee  rode  over  to  our  line, 
Heth's  and  Wilcox's  divisions  covering  the  interval  be- 
tween Longstreet's  left  and  Ewell's  right,  and  had  a 
conference  with  General  Hill  in  the  porch  of  the  house. 
From  the  roof  some  shingles  had  been  broken  out,  and 
we  had  a  fine  marine  glass,  and  could  see  clearly  the  open 
ground  around  Wilderness  tavern  over  the  tops  of  the 
trees.  From  the  constant  stream  of  couriers  and  officers 
we  felt  assured  that  it  was  General  Grant's  headquarters 
in  our  view.  In  a  field  near  the  headquarters  was  a  large 
park  of  heavy  guns,  and  as  I  looked  these  guns  moved 
into  the  road  and  took  the  road  to  our  right,  their  left.  I 
went  down  and  reported  the  movement  and  direction 
taken  by  these  heavy  guns.  It  was  no  doubt  simply  con- 
firmatory of  numerous  other  reports  from  the  cavalry  and 
other  points  of  the  line,  that  General  Grant  was  moving 
to  Spottsylvania  C.  H.  Orders  were  at  once  given  for 
the  all-night  march  of  Kershaw's  and  Field's  brigades, 
General  Longstreet's  division,  now  under  the  command  of 
General  R.  H.  Anderson.  The  Third  Army  Corps  moved 
on  the  same  route  on  the  8th  of  May,  passing  through  the 
burning  woods,  in  which  many  a  poor  soul  perished  from 
rire,  who  had  escaped  death  from  his  wounds.  We  had  a 
small  engagement  with  the  enemy  on  our  march,  the 
enemy  pushing  a  force  from  near  Todd's  tavern.  They 
were  moved  from  our  path  by  the  brigade  skirmishers  of 
Mahone's  brigade,  a  splendid  body  of  sharpshooters. 
General  Early  was  now  in  command  of  the  Third  Army 
Corps,  General  Hill  being  sick,  but  he  followed  in  his 
ambulance. 


36  SOME  REMINISCENCES 

We  reached  what  was  to  be  the  still  bloodier  field  of 
Spottsylvania  C.  H.  early  on  the  gth  of  May. 

Yours  truly, 
Wm.  H.  Palmer. 

In  his  history  of  the  Army  of  the  Potomac 
Swinton  says  the  Federals  were  at  a  complete  loss 
to  understand  why  Longstreet's  overpowering  rush 
was  suspended,  and  after  mentioning  that  he  was 
shot  by  his  own  men,  he  adds  a  footnote  to  page 
434  as  follows : 

"General  Longstreet  stated  to  the  writer  that  he  saw 
they  were  his  own  men,  but  in  vain  shouted  to  them  to 
cease  firing.  He  also  expressed  with  great  emphasis  his 
opinion  of  the  decisive  blow  he  would  have  inflicted  had  he 
not  been  wounded.  'I  thought,'  said  he,  'that  we  had 
another  Bull  Run  on  you,  for  I  had  made  my  dispositions 
to  seize  the  Brock  road.'  " 

It  certainly  looks  as  if  Providence  had  deter- 
mined that  we  should  not  succeed.  Look  at  the 
facts.  Albert  Sydney  Johnston  stricken  down  at 
Shiloh  just  as  he  was  about  to  inflict  a  death-wound 
upon  his  enemy;  Joseph  E.  Johnston,  at  Seven 
Pines,  Stonewall  Jackson,  at  Chancellorsville,  and 
General  Longstreet  at  the  Wilderness. 

It  has  been  generally  supposed  that  Lee  had 
in  his  Gettysburg  campaign  the  finest  army  that 
he  ever  commanded.  He  had  veteran  troops, 
it  is  true,  troops  that  had  become  accustomed  to  co- 
operating with  each  other,  and  so  far  as  that  goes 


SOME  REMINISCENCES  37 

to  make  a  fine  army,  his  army  was  up  to  a  high 
mark.  But  his  troops  had  been  starved  and  frozen 
until  men  and  beasts  had  wasted  much  of  their 
strength,  and  they  were  far  from  possessing  that 
stamina,  physical  and  moral,  which  naturally  be- 
longed to  them. 

My  excellent  friend,  Col.  Wm.  H.  Palmer,  of 
Richmond,  already  quoted  from,  has  made  from 
the  War  Records  the  following  most  interesting 
summary  of  events  shown  by  the  records  that  bear 
upon  that  subject.  It  also  shows  what  a  large 
body  of  troops  were  within  reach  for  Mr.  Davis 
to  utilize  in  placing  the  army  at  Culpeper  Court 
House  that  General  Lee  wanted  formed  there. 
What  would  not  have  happened  if  these  35,000 
veteran  troops  had  been  put  at  Culpeper  Court 
House  under  Beauregard?  Colonel  Palmer  per- 
mits me  to  insert  his  paper  here. 

War  Records,   Series  I,    Vol.   XXV,   Part   II.     Corres- 
pondence, Serial  Number  40. 

CHANCELLORSVILLE. 

R.  E.  Lee,  March  27,  1863,  to  James  A.  Seddon,  Secre- 
tary of  War,  (page  687) :  His  army  not  supplied  with 
food. 

R.  E.  Lee,  March  29,  1863,  to  Seddon,  {page  691)  : 
Scouts  on  duty  ordered  away  by  Department  without 
his  knowledge. 

R.  E.  Lee,  April  1,  1863,  to  Gen.  W.  N.  Pendleton, 
(page  697) :  Tells  him  to  have  his  artillery  horses 
"grazed  and  browsed"  in  the  absence  of  long  forage. 


38  SOME  REMINISCENCES 

R.  E.  Lee,  April  16,  1863,  to  President  Davis,  {page 
725) :  Unable  to  bring  his  army  together  for  want  of 
subsistence  and  forage. 

R.  E.  Lee,  April  ij,  1863,  to  Seddon,  {page  730)  : 
Army  failing  in  health  because  of  insufficient  rations — 
1/4  lb.  bacon,  18  oz.  flour,  10  lbs.  rice  to  each  100  men 
every  third  day.  Will  break  down  when  called  upon 
for  exertion. 

I  interrupt  Colonel  Palmer's  narrative  at  this 
point  to  insert  the  following  on  my  own  account. 
The  letter  of  General  Lee  to  the  Secretary  of  War 
of  March  27,  1863,  referred  to  above,  is  too  im- 
portant not  to  be  quoted.     He  says : 

The  troops  of  this  portion  of  the  army  have  for  some 
time  been  confined  to  reduced  rations,  consisting  of  eigh- 
teen ounces  of  flour,  four  ounces  of  bacon  of  indifferent 
quality  with  occasional  supplies  of  rice,  sugar  and 
molasses.  The  men  are  cheerful  and  I  receive  but  few 
complaints ;  still  I  do  not  think  it  enough  to  continue  them 
in  health  and  vigor,  and  I  fear  that  they  will  be  unable  to 
endure  the  hardships  of  the  approaching  campaign. 
Symptoms  of  scurvy  are  appearing  among  them,  and 
to  supply  the  place  of  vegetables  each  regiment  is  directed 
to  send  a  daily  detail  to  gather  sassafras  buds,  wild 
onions,  garlic,  lambs-quarter  and  poke  sprouts,  but  for 
so  large  an  army  the  supply  obtained  is  very  small.  I 
have  understood,  but  I  do  not  know  with  what  truth, 
that  the  Army  of  the  West  and  that  in  the  department  of 
South  Carolina  and  Georgia  are  more  bountifully  supplied 
with  provisions.  I  have  also  heard  that  the  troops  in 
North  Carolina  receive  one  half  pound  of  bacon  per  day. 
I  think  this  army  deserves  as  much  consideration  as  either 


SOME  REMINISCENCES  39 

of  those  named,  and  if  it  can  be  supplied,  respectfully  ask 
that  it  shall  be  similarly  provided. 
W"  1  j    'H     if.j      «| 

This  letter  was  referred  by  the  Secretary  of 
War  to  L.  B.  Northrup,  Commissary-General  of 
Subsistence,  and  he  made  the  following  reply  to  it : 

April  1,  1863. 

The  reduction  of  the  meat  ration  in  General  Lee's 
army  was  mainly  due  to  local  causes,  that  of  transporta- 
tion being  chief,  as  will  appear  by  the  following  en- 
dorsement on  a  letter  received  from  J.  H.  Claiborne,  com- 
missary of  subsistence: 

Richmond,  March  28,  1863 

Respectfully  referred  to  the  Secretary  of  War,  with  a 
statement  of  Mr.  Hottel,  my  transportation  agent.  This 
paper  I  directed  to  be  prepared  for  the  purpose  of  showing 
the  inadequacy  of  the  transportation  for  bringing  even 
the  rough  articles  of  meat,  the  sugar  on  hand  and  to  hand 
since  the  13th  of  December  having  been  used  as  a  sub- 
stitute for  bacon.  This  condition  requires  an  instant 
remedy.  Mr.  Hottel  suggests  one,  viz:  to  reduce  the 
passenger  trains  one  half. 

Major  W.  H.  Smith,  from  Raleigh,  reports  the 
depots  blocked  up  at  three  points,  and  the  railroad  men 
prefer  private  freight,  which  they  say  pays  better. 

This  army  is  living  from  hand  to  mouth  as  to  meat 
and  bread,  due  to  a  want  of  means  to  get  both  meat 
and  wheat  brought  to  market.  Railroads  worn  out, 
horses  killed  up,  all  obstacles  beyond  the  reach  of  the 
commissary-general  of  subsistence. 

Dr.  Cartwright  in  a  lengthy  report  on  the  reduction  of 
the  meat  ration  (which  was  referred  to  this  bureau  by  the 
President)  urges  that  it  be  done  on  sanitary  grounds. 


4o  SOME  REMINISCENCES 

The  appearance  of  the  men  of  General  Lee's  army 
and  their  health  confirms  the  opinion  of  Dr.  Cartwright, 
as  to  diminishing  the  ration,  and  it  is  recommended  that 
the  bacon  and  pork  rations  be  reduced  to  one  fourth  of 
a  pound  throughout  the  army. 

Well,  well,  well !  Does  not  that  outdo  anything 
that  was  ever  heard  of?  Here  is  General  Lee  tell- 
ing the  Department  that  his  soldiers  are  starving, 
but  with  a  heroism  never  shown  before  are  making 
no  complaint;  that  he  is  trying  to  eke  out  their 
meager  rations  by  making  them  gather  sassafras 
buds  and  wild  onions — grazing  them  along  with 
the  cattle — and  the  Department  replies  he  must 
not  feed  his  men  too  high,  or  they  will  get  fat, 
sleek  and  lazy!     What  is  to  be  thought  of  that? 

But  that  is  not  all.  Commissary-General  North- 
rup  adds  in  this  same  communication  that  if  a  suf- 
ficiently strong  military  guard  is  furnished  him  he 
thinks  he  can  glean  something  out  of  the  counties 
of  Fauquier,  Loudoun,  Culpeper,  and  Madison, 
Virginia,  which  had  been  the  camping-ground  of 
the  two  armies  during  all  the  war.  They  were  rich 
counties  and  they  were  near  at  hand  and  conveni- 
ent, and  the  people  had  hidden  a  little  from  the 
Federal  armies,  and  if  he  had  soldiers  sent  with 
him  he  thought  he  could  drag  out  of  those  deso- 
lated counties  a  little  more.  This  correspondence 
furnishes  a  key  to  the  incompetency  of  the  Con- 
federate civil  administration  in  all  directions.     In- 


SOME  REMINISCENCES  41 

stead  of  grappling  with  the  difficulties  of  the  case 
at  the  source  they  were  treated  as  weak  men  al- 
ways treat  exigencies,  weak  substitutes  were  re- 
sorted to  where  there  should  have  been  nothing  but 
positive  and  energetic  action.  Instead  of  the 
forcible  seizure  of  such  trains  as  were  necessary  to 
bring  food  to  the  army,  we  have  an  imbecile  essay 
upon  the  peril  of  soldiers  getting  fat  and  lazy  if 
fed  too  high,  and  a  suggestion  that  as  the  four 
counties  named  might  be  drained  of  something 
more,  resort  had  better  be  had  to  them. 

This  correspondence  furnishes  a  clue  to  the 
whole  civil  administration  of  the  Confederacy. 
This  inefficiency  went  on  dragging  the  Confederate 
soldier's  condition  down  until  it  became  pitiable  in 
the  last  degree.  General  Lee's  army  became  so 
ragged  it  could  scarcely  be  said  to  be  clothed  at 
all,  and  to  a  great  extent  it  was  without  shoes. 
The  men  received  rations  that  were  actually  not 
enough  to  keep  body  and  soul  together,  but  they 
remained  patiently  at  their  posts  fighting  odds  of 
two  or  three  to  one  every  day,  never  murmuring, 
never  complaining. 

I  quote  in  this  connection  the  following  passage 
from  the  autobiography  of  Gen.  Benjamin  F.  But- 
ler (page  610).  Speaking  of  the  conditions  ex- 
isting in  the  Confederate  Army  in  the  summer  of 
1864  he  says: 


42  SOME  REMINISCENCES 

In  the  matter  of  starvation,  the  fact  is  incontestible 
that  a  soldier  in  our  army  would  have  quite  easily  starved 
on  the  rations  which,  in  the  latter  days  of  the  war,  were 
served  out  to  the  Confederate  soldiers  before  Petersburg. 
I  examined  the  haversacks  of  many  Confederate  soldiers 
captured  on  picket,  during  the  summer  of  1864,  and 
found  therein,  as  their  rations  for  three  days,  scarcely 
more  than  a  pint  of  kernels  of  corn,  none  of  which  were 
broken  but  only  parched  to  blackness  by  the  fire,  and  a 
piece  of  meat,  most  frequently  raw  bacon,  some  three 
inches  long  by  an  inch  and  a  half  wide  and  less  than  half 
an  inch  thick.  Now  no  Northern  soldier  could  have  lived 
three  days  upon  that,  and  the  lank,  emaciated  con- 
dition of  the  prisoners  fully  testifies  to  the  meagerness  of 
their  means  of  subsistence  *  *  *  With  regard  to  cloth- 
ing it  was  simply  impossible  for  the  Confederates  at  that 
time  and  for  many  preceding  months  to  have  sufficient 
clothing  upon  the  bodies  of  their  soldiers,  and  many 
passed  the  winder  barefoot. 

Of  course  if  there  had  been  no  food  in  the  coun- 
try no  criticism  could  be  made  upon  the  Confeder- 
ate civil  administration  for  giving  the  army  none. 
But  there  was  plenty  of  food  if  energetic  action 
had  been  taken  to  concentrate  it  for  the  army. 

Major  Lewis  Ginter,  who  died  in  1897,  was 
one  of  the  most  respected  and  beloved  citizens  that 
Richmond  ever  had.  During  the  war  he  was  the 
quartermaster  of  Thomas's  Georgia  brigade.  He 
was  a  very  prosperous  business  man,  and  after  the 
war  he  made  a  very  large  fortune  in  the  cigarette 
business  in  the  firm  of  Allen  &  Ginter.  This  busi- 
ness developed  into  the  great  American  Tobacco 


SOME  REMINISCENCES  43 

Company.  Prior  to  the  war  Gen.  Robert  E.  Lee 
knew  Major  Ginter  well,  and  had  the  greatest  con- 
fidence in  him  and  the  greatest  respect  for  him. 

In  1895  the  same  Judge  Keith,  to  whom  I  have 
already  referred,  and  myself  were  calling  upon 
Major  Ginter  one  evening,  and  the  starving  con- 
dition of  our  army  at  Petersburg  in  the  winter  and 
spring  of  1864-65  came  under  discussion.  Major 
Ginter  made  the  following  statement,  in  effect,  to 
us.  He  said  that  General  Lee  sent  for  him  during 
that  time  and  told  him  to  go  down  into  North 
Carolina  and  see  if  he  could  not  find  something 
there  to  feed  and  clothe  his  army  with.  Ginter 
said  he  went  to  Danville,  Virginia,  and  there 
found  warehouses  bursting  with  grain  and  meat. 
On  inquiring  what  this  meant,  the  quartermaster  in 
charge  said  they  could  not  get  the  use  of  any  trains 
to  send  these  provisions  to  the  army;  that  the  sut- 
lers controlled  all  the  transportation  and  were 
using  it  to  carry  wines  and  whiskey  and  cigars  and 
other  such  things  to  Richmond;  that  these  sutlers 
had  the  authority  of  the  Confederate  administra- 
tion for  what  they  were  doing.  The  quartermas- 
ter said  that  if  General  Lee  would  only  say  the 
word  they  would  forcibly  seize  the  engines  and 
cars  and  send  the  provisions  to  the  army.  Ginter 
said  he  went  to  Charlotte,  North  Carolina,  and  to 
other  North  Carolina  towns,  and  he  found  the 
same  conditions  existing  in  all  of  them.     He  re- 


44  SOME  REMINISCENCES 

turned  to  Petersburg  and  reported  what  he  had 
learned  to  General  Lee,  and  he  urged  him  to  send 
orders  to  the  quartermasters  to  seize  the  trains  and 
send  him  provisions.  He  said  General  Lee  walked 
up  and  down  in  his  tent  for  awhile  and  then  said, 
"No,  Major,  I  can't  do  it.  It  would  be  revolu- 
tionary. If  the  administration  chooses  to  let  this 
army  starve  it  will  have  to  starve." 

The  thing  happened  just  as  Major  Ginter  told 
it,  because  he  was  incapable  of  telling  a  falsehood; 
and  Judge  Keith  will  testify  I  have  related  it  just 
as  Major  Ginter  told  it  to  us. 

If  the  Army  of  Northern  Virginia  had  been  kept 
supplied  with  food  and  clothing  General  Grant 
would  have  found  his  work  cut  out  for  him  when 
he  undertook  to  drive  it  away  from  Petersburg.  I 
don't  believe  the  army  was  ever  marshalled  that 
could  have  done  it.  The  Army  of  Northern  Vir- 
ginia was  not  conquered.  It  was  simply  forsaken 
by  its  government  and  left  to  perish. 

It  may  be  thought  that  after  these  bitter  reflec- 
tions I  am  still  an  "unreconstructed  rebel."  But  I 
am  not.  I  have  come  to  believe  that  the  thing 
turned  out  as  it  ought  to  have  turned  out.  Slavery 
and  the  principle  of  secession  had  to  be  got  rid  of 
and  the  only  way  they  could  ever  have  been  got 
rid  of  was  to  fight  the  war  to  a  finish. 

I  am  a  thoroughly  reconstructed  rebel  that  looks 
upon  the  Government  of  the  United  States  as  his 


SOME  REMINISCENCES  45 

government,  and  I  am  as  ready  to  offer  my  life 
for  it  as  I  was  to  offer  it  for  the  Confederate  Gov- 
ernment. But  when  I  get  to  writing  of  those  old 
days  my  fighting  blood  gets  up  and  all  the  enthusi- 
asm of  the  period  returns  to  me. 

I  return  now  to  Colonel  Palmer's  narrative. 

R.  E.  Lee,  April  20,  1863,  to  Davis,  (page  7 37)  :  Gives 
points  in  the  South  (Florida  and  Georgia)  where 
supplies  can  be  had  in  abundance. 

R.  E.  Lee,  May  2,  1863,  to  Davis,  {page  407)  :  In- 
sufficiency of  cavalry  in  his  army;  points  out  where 
cavalry  regiments  doing  nothing  can  be  ordered  to  him. 
Fears  disaster   trom   insufficiency  of  cavalry. 

R  E.  Lee,  May  2,  1863,  to  Davis,  {page  765)  :  "If  I 
had  all  of  my  command  and  could  keep  it  supplied  with 
provisions  and  forage,  I  would  feel  easy." 

R  E.  Lee,  May  7,  1863,  to  Davis,  (page  782)  :  Calls 
attention  to  insufficiency  of  his  cavalry.  His  army 
40,000;  Hooker's,  120,000  men.  Losses  at  Chancel- 
lorsville  heavy ;  always  so  where  the  inequality  of  num- 
bers is  so  great.  Recommends  that  troops  be  brought 
from  the  South,  where  they  have  nothing  to  do  and 
will  perish  from  disease  and  inaction.  Bring  Beaure- 
gard with  them  and  put  him  in  command  here. 

R.  E.  Lee,  May  20,  1863,  to  Davis,  (page  810) :  A.  P. 
Hill,  I  think  upon  the  whole,  is  the  best  soldier  of  his 
grade  with  me. 

R.  E.  Lee,  May  30,  1863,  to  Davis,  (page  832):  Re- 
quests that  the  War  Department  take  charge  of  D.  H. 
Hill's  department  of  the  Cape  Fear  and  that  he  be 
relieved  of  its  supervision.  D.  H.  Hill  does  not  coop- 
erate with  him  or  obey  him  or  return  troops  that  belong 
to  the  Army  of  Northern  Virginia.     These  delays,  he 


46  SOME  REMINISCENCES 

fears,  will  leave  him  nothing  to  do  but  to  retreat. 
Fears  that  the  time  has  passed  when  he  can  take  the 
offensive  with  advantage. 

R.  E.  Lee,  May  30,  1863,  to  Seddon,  (page  834) :  Rec- 
ommends that  troops  be  brought  from  South  Carolina, 
Georgia,  Florida,  Cape  Fear  Department,  and  James 
River.  Asks  to  be  relieved  of  command  of  Cape  Fear 
Department. 

R.  E.  Lee,  June  2,  1863,  to  Davis,  (page  849) :  Regrets 
to  lose  Jenkins's  and  Ransom's  brigades ;  good  officers 
and  veteran  troops.    Comments  on  D.  H.  Hill's  actions. 

R.  E.  Lee,  June  2,  1863,  to  Seddon,  (page  849) :  Further 
comments  on  D.  H.  Hill's  retaining  his  troops  and  at- 
tempting to  send  inferior  troops  in  their  stead. 

R.  E.  Lee,  June  3,  1863,  to  Seddon,  (page  851) :  About 
D.  H.  Hill's  conduct  and  the  best  brigades  retained 
from  the  Army  of  Northern  Virginia. 

Series  I,  Vol.  XXVII,  Part  III,  Serial  Number  40 
GETTYSBURG. 

R.  E.  Lee,  June  3,  1863,  to  Gen.  Sam  Jones,  (page  858) : 
Even  with  this  reduction  I  am  deficient  in  general  trans- 
portation for  quartermaster,  etc.,  trains. 

R.  E.  Lee,  June  5,  1863,  to  Gen.  A.  P.  Hill,  (page  859) : 
Third  army  corps  in  front  of  Fredericksburg,  balance 
of  the  army  moving  north. 

R.  E.  Lee,  June  8,  1863,  to  Seddon,  Secretary  of  War, 
(page  868):  Writing  of  D.  H.  Hill.  "He  does  not 
seem  to  have  projected  much  and  has  accomplished 
less."  Nothing  to  be  gained  by  remaining  on  the  de- 
fensive. If  the  Department  thinks  it  better  to  remain 
on  defensive  it  has  only  to  inform  me.  Troops  not 
needed  in  the  South.  Sent  to  the  armies  in  the  field, 
we  might  hope  to  make  some  impression  on  the  enemy. 

Note  on  the  ivay  to   Gettysburg:     Insufficient  food,  in- 


SOME  REMINISCENCES  47 

sufficient  transportation,  insufficient  cavalry.  No 
infantry  reinforcements.  Can't  get  his  own  troops  from 
Cape  Fear  Department.  Troops  rotting  from  inac- 
tion in  South.  Heroically  starts  north,  but  on  June  8th 
at  Culpeper  Court  House.  Is  uncertain  if  Department 
will  let  him  go. 

Seddon,  Secretary  of  War,  June  Q,  1863,  to  Gen.  Lee, 
(page  874) :  Apologizes  to  General  Lee  and  explains 
that  the  disposition  of  the  troops  in  North  Carolina  is 
determined  by  Mr.  Davis. 

Gen.  R.  E.  Lee,  June  Q,  1863,  to  Davis,  (page  874)  : 
Culpeper  Court  House.  Reports  that  the  enemy's  cav- 
alry, infantry,  and  artillery  have  crossed  the  Rappahan- 
nock in  force.  Prisoners  from  two  corps  captured. 
Suggests  orders  to  Cooke's  brigade  and  Jenkins's  bri- 
gade to  be  sent  to  the  Army  of  Northern  Virginia. 

President  Davis,  June  0,  1863,  (page  874) :  Mr.  Davis 
refers  General  Lee's  dispatch  to  Gen.  D.  H.  Hill  as  to 
Jenkins's  and  Cooke's  brigades. 

Saml.  Cooper,  A.  A.  G.,  June  JO,  1863,  to  Gen,  D.  H. 
Hill,  (page  870):  Informs  Gen.  D.  H.  Hill  of  Gen- 
eral Lee's  order  as  to  Cooke's  and  Jenkins's  brigades 
and  leaves  it  to  Gen.  D.  H.  Hill's  discretion  if  General 
Lee's  order  shall  be  carried  out. 

R.  E.  Lee,  June  13,  1863,  to  Seddon,  (page  886) :  "You 
can  realize  the  difficulty  of  operating  in  an  offensive 
movement  with  this  army  if  it  is  to  be  divided  to  cover 
Richmond.  It  seems  to  me  useless  to  attempt  it  with 
the  force  against  it." 

Saml.  Cooper,  A.  A.  G.,  June  15,  1863,  to  D.  H.  Hill, 
{pages  8qo-8qi)  :  Authorizes  Hill  to  retain  Jenkins's 
brigade,  Ransom's  to  Drewry's  Bluff.  Corse's  Virginia 
brigade  drawn  from  General  Lee's  command  at  Cul- 
peper. 

R.  E.  Lee,  June  16,  1863,  to  A.  P.  Hill:     Informs  him 


48  SOME  REMINISCENCES     . 

that  Anderson's  division  of  his  corps,  Third,  has  reached 
Culpeper  Court  House.  Expects  another  division  next 
day. 

Davis,  June  IQ,  1863,  to  Lee,  (page  904) :  Informs  Gen- 
eral Lee  why  a  part  of  his  army,  "Pickett's  division, 
Gorse's  brigade,  has  been  detained.  Jenkins's  brigade 
deemed  necessary  by  D.  H.  Hill  to  protect  Petersburg." 

Gen.  A.  G.  Jenkins,  June  20,  1863,  to  D.  H.  Hill,  Mur- 
fee's  Depot,  (p.  qo8).  I  beg  as  a  personal  favor  that 
you  arrange  to  send  my  brigade  to  join  General  Lee.  I 
have  sent  scouts  to  Suffolk.     No  enemy,  no  gunboats. 

Gen.  G.  E.  Pickett,  June  21,  1863,  to  A.  A.  G.  Chilton, 
(page  910):  Wants  his  scattered  command  sent  to 
him. 

Gen.  Lee,  June  22,  1863,  to  Gen.  J.  E.  B.  Stuart,  {page 
913):  Move  with  three  brigades  into  Maryland. 
(Two  brigades  can  guard  the  Blue  Ridge  and  take  care 
of  your  rear.)  Take  position  on  General  Ewell's  right. 
Place  yourself  in  communication  with  him.  One  col- 
umn will  move  by  Emmitsburg  route,  another  by 
Chambersburg. 

Gen.  Lee,  June  23,  1863,  to  Gen.  Stuart:  I  think  you 
had  better  withdraw  on  this  side  of  the  mountain  to- 
morrow night,  camp  at  Shepherdstown  the  next  day  and 
move  over  to  Frederickstown.  In  either  case,  after 
crossing  the  river  you  must  move  on  and  feel  the  right 
of  Ewell's  troops,  collecting  information,  provisions, 
etc. 

Gen.  Lee,  June  23,  1863,  to  Davis,  (page  925) .  Urges 
withdrawal  of  troops  from  Carolina  and  Georgia  under 
Beauregard  and  part  at  least  pushed  forward  to  Cul- 
peper Court  House.  His  presence  would  give  magni- 
tude to  even  a  small  demonstration  and  tend  greatly  to 
confound  and  perplex  the  enemy.  Good  results  would 
follow  from  sending  forward  under  Beauregard  such 


SOME  REMINISCENCES  49 

troops  about  Richmond  and  North  Carolina  as  could  be 
spared  for  a  short  time.  The  good  effect  of  beginning 
to  assemble  an  army  at  Culpeper  Court  House  would, 
I  think,  soon  become  apparent,  and  the  movement  might 
be  increased  in  importance  as  the  result  might  appear  to 
justify. 

R.  E.  Lee  to  Saml.  Cooper,  A.  A.  G.,  June  23,  {p.  925)  : 
Urges  that  Corse's  brigade  be  sent  to  Pickett's  division. 
Not  needed  where  it  is,  especially  if  the  plan  of  as- 
sembling an  army  under  Beauregard  at  Culpeper  C.  H. 
is  adopted. 

Gen.  Lee  to  Davis,  opposite  Williams  port,  June  2$,  1863, 
(/>•  93)  '  "If  the  place  I  suggested  the  other  day  of  or- 
ganizing an  army,  even  in  effigy,  under  Beauregard  at 
Culpeper  C.  H.  can  be  carried  into  effect,  much  relief 
will  be  afforded.  If  even  the  brigades  in  Virginia  and 
North  Carolina,  which  Generals  D.  H.  Hill  and  Elzey 
think  cannot  be  spared,  were  ordered  there  at  once  and 
General  Beauregard  were  sent  there,  if  he  had  to  re- 
turn to  South  Carolina,  it  would  do  more  to  protect 
both  States  than  anything  else." 

Gen.  Lee  to  Davis,  Willianisport,  June  25,  1863:  "It 
seems  to  me  that  we  cannot  afford  to  keep  our  troops 
awaiting  possible  movements  of  the  enemy,  but  that 
our  true  policy  is,  as  far  as  we  can,  to  employ  our  own 
forces  so  as  to  give  occupation  to  his,  at  points  of  our 
selection.  *  *  *  I  feel  sure,  therefore,  that  the 
best  use  that  can  be  made  of  the  troops  in  Carolina  and 
those  in  Virginia  now  guarding  Richmond  would  be  the 
prompt  assembling  of  the  main  body  of  them  *  *  * 
together  with  as  many  as  can  be  drawn  from  the  army 
of  Gen.  Beauregard  at  Culpeper  C.  H.  under  the  com- 
mand of  that  officer.  It  should  never  be  forgotten  that 
our  concentration  at  any  point  compels  that  of  the 
enemy,  and  his  numbers,  being  limited,  tends  to  relieve 
all  other  threatened  localities." 
4 


5o  SOME  REMINISCENCES 

Page    946. — Abstract    from    the    Department    of    North 
Carolina,  Maj.-Gen.  D.  H.  Hill,  commanding,  head- 
quarters near  Richmond,  Virginia,  June  JO,  1863. 
Permanent   force:     Clingman's    brigade,    Cooke's    bri- 
gade, Martin's  brigade,  Colquitt's  brigade,  Jenkins's  bri- 
gade,  Ransom's  brigade,   unattached   infantry;    artillery; 
cavalry.    Officers,  1,308;  aggregate  present,  22,822;  pieces 
of  field  artillery,   104. 

Major  General  Elzey's  Command :  Wise's  brigade, 
Corse's  brigade  of  Pickett's  division ;  local  troops,  number 
not  given. 

Mr.  Davis's  letter  to  General  Lee  of  June  28,  1863, 
giving  reasons  why  he  could  not  send  General  Beaure- 
gard to  Culpeper  C.  H.  to  make  a  diversion  in  his  favor 
was  entrusted  to  a  courier  who  was  captured  by  Captain 
Dahlgren  of  General  Meade's  staff,  so  that  General 
Meade  had  full  knowledge  that  he  had  nothing  to  fear  in 
the  direction  of  Washington.  General  Lee  first  learned 
that  his  suggestions  would  not  be  entertained  by  reading 
Mr.  Davis's  letter  to  him  in  the  New  York  Herald  and 
the  New  York  Tribune. 

This  ends  Colonel  Palmer's  narrative.  There 
are  several  remarks  to  be  made  upon  it.  It  is  posi- 
tively sickening  to  see  the  contempt  with  which 
General  Lee's  recommendations  and  suggestions 
were  treated.  He,  the  Hercules  of  the  undertak- 
ing, without  whom  all  of  them  would  have  been 
kicked  into  the  James  River  in  a  jiffy,  receives  no 
more  consideration  when  he  tells  them  what  is  nec- 
essary to  do  than  if  he  had  been  a  quartermaster's 
clerk  in  some  bomb-proof.    He  cannot  even  require 


SOME  REMINISCENCES  51 

his  subordinate,  D.  H.  Hill,  to  send  him  his  vet- 
eran brigades  which  he  needed  so  sadly  in  the  crisis 
at  Gettysburg.  His  recommendations,  so  full  of 
wisdom  and  common  sense,  that  the  large  force 
scattered  over  the  south  should  be  concentrated  at 
Culpeper  Court  House  to  threaten  Meade's  rear 
when  he  and  Meade  came  to  their  death  grapple 
is  treated  as  if  it  were  the  suggestion  of  an  idle 
school  boy. 

"Those  whom  the  gods  wish  to  destroy  they 
first  make  mad,"  and  this  seems  to  have  been  the 
reason  the  Confederacy  had  its  civil  administra- 
tion. 

No  wonder  General  Lee  resigned  the  command 
of  his  army  when  he  got  back  from  Gettysburg, 
and  no  one  without  his  sublime  patriotism  and  he- 
roism would  ever  have  consented  to  withdraw  his 
resignation. 

Gen.  Robert  E.  Lee  was,  in  my  opinion,  one  of 
the  greatest,  if  not  the  very  greatest,  characters  in 
all  history.  The  domination  which  he  established 
over  the  Army  of  Northern  Virginia  is  as  high  a 
tribute  to  him  as  could  be  paid.  There  were  some 
of  the  fiercest  and  most  inflexible  men  in  that  army 
that  the  world  has  ever  seen.  Stonewall  Jackson, 
Jubal  A.  Early,  John  B.  Gordon,  J.  E.  B.  Stuart, 
J.  B.  Hood  were  men  who  would  stand  erect  in  any 
presence  on  earth  and  yet  they  all  stood  uncovered 
in  Lee's  presence,  and  took  the  law  from  him  as  a 


52  SOME  REMINISCENCES 

child  takes  it  from  his  father.  Stonewall  Jackson 
once  said  that  General  Lee  was  the  only  man  in  the 
world  that  he  would  follow  blindly,  but  that  he 
would  follow  Lee  blindly  wherever  he  chose  to 
lead.  The  whole  army  had  exactly  that  feeling 
toward  General  Lee.  They  all  called  him  "Marse 
Robert,"  and  this  expressed  their  feeling  of  devo- 
tion toward  him.  None  but  the  most  extraordi- 
nary man  could  have  established  such  a  mastery 
over  these  inflexible  men.  It  was  General  Lee's 
domination  of  his  army  that  made  it  the  greatest 
fighting  machine  the  world  ever  saw. 

In  the  year  1890  the  magnificent  equestrian 
statue  of  General  Lee  was  unveiled  at  Richmond. 
There  was  an  immense  turnout  of  Confederate  sol- 
diers from  all  over  the  South.  It  was  a  day  to  be 
remembered  by  all  who  saw  it.  Many  members  of 
the  old  Third  Virginia  Cavalry  attended,  and  they 
formed  themselves  into  an  organization.  Their 
old  colonel,  Owens,  was  there,  one  of  the  most  gal- 
lant and  splendid  soldiers  who  ever  drew  a  sword. 
He  was  very  poor  and  was  unable  to  secure  a  horse 
to  ride  at  the  head  of  his  regiment.  My  dear 
friend,  Ned  Minor,  who  belonged  to  the  Third, 
told  me  the  state  of  the  case.  Another  dear  friend 
of  mine,  Willie  Trigg,  had  lent  me  his  horse,  and 
so  I  said  to  Minor,  "What,  Colonel  Owens  with- 
out a  horse  on  such  an  occasion  as  this !  That  shall 
never   be    while    Buck    Royall    has    one."       (My 


SOME  REMINISCENCES  53 

friends  have  always  called  me  "Buck.")  "Take 
my  horse  and  convey  him  to  Colonel  Owens  with 
my  compliments."  He  did  it,  and  the  dear  old 
colonel  rode  at  the  head  of  his  regiment  on  that 
proud  day,  one  of  the  proudest  men  there.  He 
was  unable  to  make  me  what  he  considered  a  fitting 
acknowledgment  of  my  service  to  him,  but  he  had 
just  had  a  girl  baby  born  and  he  went  home  and 
named  her  "Buck  Royall." 

Speaking  of  General  Robert  E.  Lee,  in  my  opin- 
ion there  was  never  anything  more  preposterous 
than  the  claim  of  Union  zealots  that  General  Lee 
was  a  traitor  because  he  cast  in  his  lot  with  the 
Southern  people.  It  is  well  known  that  one  of 
their  heroes,  General  George  W.  Thomas,  hesi- 
tated a  long  time  whether  he  should  not  resign 
from  the  Union  Army  and  come  South,  and  the 
admirers  of  Admiral  Farragut  (and  who  is  not  an 
admirer  of  him?)  had  better  not  press  their  in- 
quiries too  closely  or  they  may  find  out  the  same 
thing  about  him. 

After  our  return  from  Gettysburg  and  while  the 
army  was  about  Culpeper  Court  House,  Colonel 
Chambliss,  of  the  Thirteenth  Virginia,  command- 
ing our  brigade,  had  me  detailed  as  a  scout  because 
of  my  knowledge  of  the  country  north  of  the  Rap- 
pahannock, to  get  information  concerning  the 
enemy  then  occupying  that  territory.     I  remained 


54  SOME  REMINISCENCES 

detailed  for  that  service  until  March  20,  1864, 
coming  under  the  personal  orders  and  direction  of 
General  J.  E.  B.  Stuart. 

I  had  many  thrilling  adventures  in  my  career  as 
a  scout.  On  one  occasion  I  had  four  men  with  me, 
and  we  came  to  a  house  about  half  a  mile  from  a 
camp  of  three  regiments  of  Federal  cavalry  in 
lower  Culpeper  County  where  a  party  of  eight  men 
from  this  camp  were  pillaging  and  plundering  a 
poor  woman's  premises.  We  waylaid  these  gen- 
tlemen as  they  were  leaving  this  house,  and  spring- 
ing up  we  demanded  their  surrender.  Six  of  them 
surrendered,  but  two  of  them  tried  to  run  the 
gauntlet.  One  of  my  men  shot  one  of  them  dead 
but  the  other  one  got  away. 

I  knew  of  course  this  was  going  to  bring  an  over- 
whelming force  down  on  me  and  that  I  had  to  dust. 
I  was  mounted  on  one  of  the  captured  horses  with 
two  of  their  Sharp's  carbines  taken  from  the  enemy 
swung  around  my  shoulders.  The  prisoners  were 
walking,  and  one  of  my  men,  named  Robert  W. 
Monroe,  was  on  foot  with  them.  The  other  three 
of  my  men  were  some  distance  in  the  rear  with  the 
captured  horses.  In  turning  a  corner  in  some  very 
thick  pines  we  came  face  to  face  with  two  mounted 
Federal  soldiers  not  twenty  feet  from  us.  I  called 
out  at  once  to  them,  "Surrender!"  Instead  of 
doing  so  the  man  on  my  side  of  the  road  com- 
menced drawing  his  revolver.     I  raised  one  of  my 


SOME  REMINISCENCES  SS 

carbines  to  my  shoulder  and  with  the  start  I  had 
in  firing  I  ought  to  have  shot  him  dead  before  he 
got  his  revolver  from  the  holster.  But  I  retained 
the  reins  in  my  left  hand,  and  as  soon  as  I  slack- 
ened the  pressure  on  the  bit  my  horse  would 
move  forward  and  disturb  my  aim.  This  was  re- 
peated two  or  three  times,  by  which  time  I  had 
lost  my  advantage  over  my  adversary  and  I  could 
see  down  the  barrel  of  his  revolver  pointed  directly 
at  me.  I  saw  I  must  fire  or  I  was  gone,  and  so  I 
pulled  the  trigger  with  the  best  aim  I  could  get. 
I  made  the  luckiest  of  shots.  I  struck  him  at  the 
pit  of  his  right  arm  and  cut  it  almost  off.  His 
cocked  revolver  fell  from  his  hand.  It  was  at  full 
cock  and  in  another  instant  he  would  have  fired. 
The  other  man  had  his  revolver  in  his  boot,  and 
in  endeavoring  to  draw  it  the  lock  hung  in  his 
boot  strap,  and  he  was  tugging  away  at  it  while  the 
battle  was  going  on  between  me  and  his  friend. 
Monroe  had  run  to  him  and  seized  his  horse  by 
the  bit,  but  he  did  not  see  Monroe,  who  had  to 
strike  him  a  violent  blow  with  his  revolver  to  get 
his  attention ;  but  when  that  occurred  he  sung  out 
in  fine  style  that  he  would  surrender.  He  wore  a 
pair  of  long  buckskin  gloves  that  he  presented  to 
me  and  they  had  printed  across  them  the  words 
Augustus  J.  Mount  of  New  Jersey.  I  would  not 
tell  this  but  that  Monroe  is  living  to  say  whether 
it  is  true  or  not.    A  letter  addressed  to  him  at  Gold- 


56  SOME  REMINISCENCES 

vein,  Fauquier  County,  Virginia,  will  receive  im- 
mediate attention.  I  suspect  if  Mr.  Mount  is  alive 
he,  too,  has  a  rather  lively  recollection  of  the  inci- 
dent. 

We  left  the  wounded  man  on  the  side  of  the 
road,  knowing  full  well  that  his  friends  would  soon 
be  there.  I  was  told  afterward  that  he  died.  He 
was  as  game  a  chap  as  I  ever  encountered. 

I  took  my  prisoners  to  Richmond  and  lodged 
them  in  Libby  Prison.  At  that  time  General 
Meade's  army  was  lying  about  Culpeper  Court 
House.  The  territory  around  Fredericksburg  was 
neutral,  sometimes  occupied  by  the  scouting  parties 
of  one  side,  sometimes  by  the  other.  About  seven 
or  eight  miles  from  Fredericksburg  there  was  a 
place  called  Hamilton's  Crossing,  to  which,  as  I 
knew,  the  railroad  daily  sent  a  train  of  long  box- 
cars. I  took  my  prisoners  to  Hamilton's  Crossing 
to  put  them  on  this  train.  When  I  got  there  I 
found  Judge  R.  C.  L.  Moncure,  the  President  of 
the  Supreme  Court  of  Appeals  of  Virginia,  a  po- 
sition that  corresponds  to  chief  justice  in  the  other 
States.  He  is  since  dead,  leaving  a  saintly  name 
as  a  man  and  a  judge.  The  old  gentleman's  home 
was  in  the  lower  end  of  Stafford  County,  near 
Fredericksburg,  though  his  family  was  with  him  in 
Richmond.  He  had  been  to  his  home  to  kill  and 
slaughter  a  young  steer  that  he  had  there  and  carry 
it  to  Richmond  for  his  family.     I  knew  the  old 


SOME  REMINISCENCES  57 

gentleman  well  and  we  greeted  each  other  most 
cordially.  The  conductor  gave  me  one  of  the  long 
box-cars  to  put  my  prisoners  in,  and  locked  the 
Judge  and  myself  in  it  with  the  prisoners.  It  was 
just  at  nightfall  when  the  train  started  for  Rich- 
mond, and  it  took  us  all  night  to  get  there.  I  had 
on  me  two  large  army  revolvers  and  I  gave  the 
old  Judge  one  of  these.  I  put  the  prisoners  at  one 
end  of  the  car  and  the  Judge  and  I  sat  on  the  floor 
at  the  other  end.  It  was  pitch  dark  in  the  car.  I 
notified  the  prisoners  that  if  I  heard  any  movement 
amongst  them  I  should  commence  firing  on  them 
and  continue  firing  while  the  movement  lasted,  so 
that  there  was  perfect  quiet  there  during  the  night. 
The  old  Judge  sat  bolt  upright  all  night  guarding 
the  prisoners,  while  I  laid  down  and  had  a  good 
night's  sleep.  We  have  often  laughed  together 
since  over  how  I  made  him  sit  up  all  night  and 
guard  my  prisoners  while  I  enjoyed  a  refreshing 
sleep. 

I  want  to  make  it  known  that  I  did  my  duty  as  a 
Confederate  soldier,  and  so  I  state  the  following. 
In  1896  I  applied  for  membership  in  George  E. 
Pickett  Camp  of  Confederate  Veterans  at  Rich- 
mond. The  commander  told  me  I  must  furnish 
references  to  prove  my  standing  as  a  soldier.  I 
replied  that  a  private  soldier  should  always  refer 
to  his  captain  for  testimony  as  to  his  standing,  and 
that  my  last  captain, — two  having  been  killed, — 


58  SOME  REMINISCENCES 

E.  M.  Henry,  lived  at  Norfolk,  Virginia.  He 
wrote  to  him  and  received  the  following  reply, 
which  is  on  file  in  Pickett  Camp  in  Richmond: 

Norfolk,  Virginia,  April  g,  1896. 
Col.  R.  N.  Northern,  Commander  Pickett  Camp  C.  V. 

Dear  Colonel:  Yours  of  the  7th  inst.  received,  and  in 
reply  would  state  that  it  gives  me  great  pleasure  to  testify 
to  the  good  standing  and  soldierly  qualities  of  Mr.  W. 
L.  Royall  during  the  war.  He  was  a  member  of  my 
Company  A,  Ninth  Virginia  Cavalry,  Beale's  brigade. 
He  was  a  brave  and  gallant  trooper,  bold  and  daring,  and 
served  for  the  last  two  years  of  the  war  as  a  scout,  de- 
tailed for  that  purpose,  and  rendered  valuable  service  in 
gaining  information  as  to  the  enemy's  movements  by  his 
daring  and  risk  of  life. 

Your  Comrade,  E.   M.   Henry, 
Capt.  Co.  A,  Ninth  Virginia  Cavalry. 

I  would  not  exchange  that  certificate  for  Mr. 
Rockefeller's  fortune. 

On  March  20,  1864,  I  got  into  a  brush  with 
some  Federal  cavalry  and  was  shot  through  the 
left  hand  and  taken  prisoner.  The  headquarters 
of  the  command,  which  was  the  Second  New  York 
Cavalry  and  the  Eighteenth  Pennsylvania  Cavalry, 
under  the  command  of  Lieutenant  Colonel  Tim- 
othy O'Brien,  were  at  "The  Grove,"  in  the  lower 
end  of  Fauquier  County,  Virginia,  where  these  two 
regiments  had  been  for  several  weeks. 

At  "The  Grove"  there  were  two  churches  and 


SOME  REMINISCENCES  59 

nothing  else ;  one  was  a  Presbyterian  church  on  the 
north  side  of  the  public  road,  the  other,  a  Baptist 
church,  on  the  south  side.  My  mother's  home  was 
distant  only  two  miles  from  "The  Grove."  My 
father,  a  Presbyterian  minister,  had  built  the 
Presbyterian  church  at  "The  Grove,"  and  he 
preached  in  it  for  twenty  years.  He  was  buried  at 
the  back  of  the  church. 

The  officer  in  charge  of  the  party  that  had 
captured  me  was  a  lieutenant  in  the  Second  New 
York  Cavalry.  He  had  frequently  ridden  over  to 
my  mother's  house  and  had  made  the  acquaintance 
of  the  family.  They  treated  him  courteously  and 
politely,  and  he  had  promised  my  mother  that  if 
I  ever  fell  into  his  hands  he  would  see  that  I  was 
properly  treated.  When  we  got  to  "The  Grove" 
I  was  put  into  the  Baptist  church.  After  a  while 
I  was  sent  for  and  taken  over  to  the  Presbyterian 
church.  When  I  entered  I  saw  a  table  around 
which  were  seated  some  five  or  six  officers  with  a 
Bible  on  the  table.  I  had  had  sufficient  acquaint- 
ance with  military  matters  to  know  that  a  drum- 
head court  martial  in  the  field  is  usually  nothing 
but  a  stepping-stone  to  the  gallows,  and  this  looked 
to  me  prodigiously  like  a  drumhead  court  martial. 
I  was  ordered  to  be  seated,  and  then  Colonel 
O'Brien  read  an  order  which  he  seemed  to  have 
that  day  received  from  General  Kilpatrick.  It  was 
about  like  this; 


Go  SOME  REMINISCENCES 

Colonel  O'Brien: 

The  first  bushwhacker  you  catch,  you  will  try  by 
court  martial  and  have  hung. 

General  Kilpatrick. 

Colonel  O'Brien  told  me  I  was  about  to  be  tried 
by  court  martial  on  the  charge  of  being  a  bush- 
whacker. The  situation  was  about  as  terrible  as  a 
boy  of  nineteen  could  be  confronted  with.  For  a 
time  I  was  dazed  and  could  say  nothing.  But  by 
degrees  I  recovered  possession  of  my  faculties,  and 
was  soon  pleading  my  cause  more  earnestly  than 
I  have  ever  since  pleaded  one.  I  had  General 
Stuart's  orders  in  my  pocket  detailing  me  from  my 
regiment  and  ordering  me  upon  the  very  service  I 
had  been  engaged  in,  and  I  made  the  most  of  that. 
Finally  I  was  sent  out.  In  the  course  of  an  hour 
Colonel  O'Brien  came  to  me  and  told  me  the  court 
had  acquitted  me.  I  doubt  if  in  all  my  career  my 
life  has  been  in  as  much  danger  as  it  was  that  day. 

After  the  trial  I  was  put  into  an  ambulance  to 
be  carried  to  General  Meade's  headquarters  at 
Brandy  Station,  Culpeper  County.  My  friend,  the 
second  lieutenant  of  the  Second  New  York  Cavalry, 
who  had  been  on  the  court  martial,  came  to  the 
ambulance  with  some  loaves  of  bread  for  me.  I 
asked  him  how  it  was  I  escaped.  He  told  me  he 
had  promised  my  mother  to  look  out  for  me  if  I 
ever  fell  in  his  hands  and  that  he  had  just  taken 
the  stand  in  the  court  that  I  should  not  be  hung 


SOME  REMINISCENCES  61 

and  had  finally  brought  a  majority  of  the  officers 
over  to  his  side.  When  I  got  to  General  Meade's 
headquarters  I  was  put  into  the  "bull  pen."  This 
was  a  circular  stockade  made  of  split  poles  set  into 
the  ground  and  about  fifteen  or  eighteen  feet  high, 
with  no  covering  for  it  but  the  heavens.  It  was 
bitterly  cold,  and  the  snow  fell  that  night  a  foot 
deep.  When  I  entered  the  "bull  pen,"  which  was 
filled  with  Federal  deserters,  Confederate  deserters, 
Confederate  prisoners  of  war  and  civilian  prisoners, 
perhaps  fifty  in  number  all  told,  to  my  amazement 
I  found  amongst  them  my  little  brother  Taylor, 
twelve  years  of  age.  Some  wretched  raiders  had 
torn  him  from  my  mother's  arms  and  had  brought 
him  there.  My  mother  was  only  able  to  throw  an 
old  shawl  around  him,  which  she  had  pinned  at  the 
neck.  The  poor  little  fellow  was  shivering  with 
cold  when  I  found  him.  There  was  a  small  open 
fire  in  the  middle  of  the  pen  that  every  one  was 
struggling  to  get  near.  I  struggled  with  the  rest, 
to  get  Taylor  to  the  fire,  but  with  my  wounded 
hand  I  was  not  in  good  shape  for  the  struggle. 
That  night  we  had  to  lie  upon  the  ground  to  get 
what  sleep  we  did  get.  I  had  a  heavy  army  over- 
coat and  I  took  the  child  in  my  arms,  wrapping 
his  shawl  and  my  overcoat  around  us  as  best  I 
could,  and  there  we  lay  through  all  that  dreadful 
night. 

Next  day  I  was  taken  out  of  the  "bull  pen"  and 


62  SOME  REMINISCENCES 

sent  to  the  Old  Capitol  Prison  in  Washington.  I 
never  saw  Taylor  again.  The  exposure  was  too 
much  for  him.  His  throat  was  weak  and  had  been 
operated  on.  In  a  short  time  he  was  taken  out  of 
the  "bull  pen"  and  sent  to  Alexandria,  and  there, 
in  the  common  jail,  he  died,  without  a  face  near 
him  that  he  had  ever  looked  on  before. 

I  was  kept  in  the  Old  Capitol  Prison  until  about 
the  middle  of  June,  when  I  was  sent  around  by 
sea  to  Fort  Delaware,  which  is  situated  upon  a 
small  island  about  forty  miles  from  Philadelphia, 
where  the  Delaware  River  debouches  into  the 
Delaware  Bay.  The  river  is  about  four  miles  wide 
at  this  point  and  the  island  is  in  about  the  middle 
of  the  river.  There  were  some  eight  thousand 
Confederate  prisoners  on  this  island  during  the 
year  I  stayed  there.  They  were  kept  in  barracks 
made  by  planking  up  frames  of  scantling.  These 
barracks  were  very  open,  and  there  was  only  one 
stove  to  a  barrack  containing  400  men,  called  a 
division.  The  stove  was  practically  useless  for 
heating  the  barrack,  and  the  weather  was  intensely 
cold  there  in  the  winter.  I  have  seen  the  Delaware 
River  frozen  over  so  fast  and  tight  that  an  army 
with  all  its  artillery  and  trains  could  pass  over  on 
the  ice. 

When  I  had  been  there  a  short  time,  Hon. 
Theodore  F.  Randolph,  afterward  Governor  of 
New  Jersey  and  United  States  Senator  from  New 


SOME  REMINISCENCES  63 

Jersey,  who  had  married  a  relative  of  mine,  found 
out  I  was  at  Fort  Delaware  and  from  that  time  on, 
until  I  was  released  from  prison  in  June,  1865,  he 
supplied  me  with  $25  every  six  weeks.  Two  mem- 
bers of  my  company  were  in  prison  with  me  and  I 
shared  this  money  with  them.  It  was  most  ma- 
terial in  keeping  us  alive. 

The  treatment  we  received  at  Fort  Delaware  is 
an  everlasting  disgrace  to  the  Government  of  the 
United  States  of  that  period.  Much  has  been  said 
of  the  bad  treatment  of  Union  soldiers  held 
prisoners  by  the  Confederacy  but  it  is  well  known 
that  the  Confederates  were  anxious  to  exchange 
prisoners  and  that  the  Union  prisoners  fared  as 
well  as  the  Confederate  soldiers  in  the  field.  The 
Confederates  did  as  well  as  they  could  do,  but 
there  was  no  excuse  for  the  Union  Government 
not  giving  us  all  the  food  and  warmth  that  was 
necessary  for  they  had  an  abundance  of  everything. 
We  were  starved  and  frozen;  we  had  but  two 
meals  a  day.  Breakfast  consisted  of  a  piece  of 
loaf  bread  about  the  size  of  a  man's  clenched  fist 
and  a  little  piece  of  salt  pork  or  beef  about  an 
inch  thick.  We  had  no  coffee.  Dinner  consisted 
of  the  same.  This  was  not  food  enough  to  keep  a 
man  from  being  perpetually  hungry  and  no  one 
can  imagine  the  pangs  of  perpetual  hunger  who 
has  not  endured  them. 

A  piece  of  wanton  cruelty  was  inflicted  upon  us 


64  SOME  REMINISCENCES 

in  the  matter  of  blankets.  No  prisoner  was  al- 
lowed to  have  more  than  one  blanket,  never  mind 
how  he  might  have  come  in  possession  of  the  excess. 
Once  in  every  two  weeks  the  whole  prison  was 
turned  out  and  each  man  was  searched  and  all  blan- 
kets in  excess  of  one  to  the  man  were  confiscated. 
I  used  to  buy  blankets  in  between  these  searches, 
for  myself  and  my  two  comrades,  but  they  were  in- 
variably taken  away  from  us  and  we  had  to  sleep 
in  that  awful  cold  on  bare  planks  with  little  or  no 
covering.      Our  sufferings  were  intense. 


CHAPTER  II 

EVENTS   IN   RICHMOND DUELLING 

In  June,  1865,  I  returned  to  my  mother's  home 
to  find  the  family,  consisting  of  my  mother,  my 
grandmother,  my  aunt,  my  elder,  but  incapacitated 
brother,  my  sister  and  her  husband  and  four  chil- 
dren and  my  unmarried  sister,  existing,  but  that 
was  all,  on  the  place.  The  negroes  were  all  gone, 
the  Federal  army  had  taken  from  them  every  ani- 
mal and  how  they  had  managed  to  exist  I  could 
not  understand.  I  went  to  work  as  a  common 
laborer  on  the  farm  and  labored  there  two  years, 
by  which  time  I  had  pulled  the  place  up  so  that 
my  mother  and  her  family  could  get  a  very  good 
living  out  of  it. 

My  mother  had  some  money  at  interest  before 
the  war,  and  getting  that  in,  she  gave  me  $2,000 
and  started  me  out  in  the  world  to  make  my  future, 
whether  good  or  bad. 

I  came  to  Richmond,  January  1,  1868,  and 
read  law  with  William  Green,  Esq.,  the  most  pro- 
found and  learned  lawyer  that  I  have  ever  known 
anything  of.  His  argument  in  the  case  of  Moon 
vs.  Stone  in  19th  Grattan  has  been  referred  to  by 
the  judges  in  Westminster  Hall.* 

*  Mr.  Green  was  not  only  a  most  learned  lawyer,  but  he  had 
picked  up  a  vast  deal  of  miscellaneous  information  from  books, 

5 


66  SOME  REMINISCENCES 

At  the  end  of  a  year's  study  I  was  licensed  to 
practice  law,  and  I  hung  out  my  shingle  in  the  city 
of  Richmond.  The  society  of  Richmond  was  at 
that  time  most  delightful  as  it  is  to  this  day.  The 
young  ladies  were  many  of  them  very  beautiful  and 
of  the  most  fascinating  manners.     They  had  just 

and  when  once  he  learned  a  thing  in  reading  it  stuck  in  his  mind 
like  a  burr.  Like  all  very  learned  men  he  always  had  a  "wise 
saw  and  modern  instance"  for  every  case,  and  the  thing  that 
interested  him  whenever  any  subject  came  up  for  discussion  was 
the  appropriateness  of  the  citation  he  was  going  to  make  for  that 
case. 

For  two  or  three  years  after  the  close  of  the  war  Chief  Jus- 
tice Salmon  P.  Chase  came  to  Richmond  regularly  to  hold  the 
United  States  Circuit  Court.  On  one  of  these  occasions  Mr. 
James  Lyons,  an  eminent  member  of  the  Richmond  bar,  gave 
Judge  Chase  a  dinner  to  which  Mr.  Green  was  invited.  During 
dinner  Judge  Chase  told  an  anecdote  about  Mr.  Lincoln.  He 
said  that  soon  after  the  Monitor  and  the  Merrimac  had  their 
bout  in  Hampton  Roads,  the  Secretary  of  the  Navy  invited  Mr. 
Lincoln,  himself,  and  two  or  three  other  members  of  the  Cabinet 
to  take  a  little  jaunt  on  a  government  steamer  down  the  Po- 
tomac. Between  Washington  and  Alexandria  they  came  to  a 
place  where  a  cordon  of  logs  and  other  obstructions  extended 
from  either  shore  to  the  channel,  leaving  just  enough  space  for 
a  good  sized  steamer  to  pass  through.  Mr.  Lincoln  asked  the 
Secretary  of  the  Navy  what  that  was  meant  for.  "Oh,"  replied 
he,  "that  has  been  constructed  here  to  stop  the  Merrimac  in  case 
she  should  get  up  here."  "Well,"  said  Mr.  Lincoln,  "that  re- 
minds me  of  an  anecdote.  Once  I  was  riding  through  my  dis- 
trict in  Illinois  accompanied  by  a  friend  or  two,  and  we  came 
to  a  stream  where  several  naked  men  were  bathing.  I  said  to 
one  of  my  friends,  'I  wonder  why  men  were  given  udders.'  'Oh,' 
said  he,  'it  was  to  suckle  babies  in  case  they  had  any.'  "  Well, 
every  one  was  on  the  go  to  laugh  at  the  great  man's  joke  and 
the  laugh  had  got  well  under  way,  when  Mr.  Green  cut 
in  with,  "Well,  Mr.  Chief  Justice,  Dr.  Haxall  there  will  tell 
you  that  there  have  been  known  cases  where  men  have  suckled 
infants." 


SOME  REMINISCENCES  67 

emerged  from  the  war,  during  which  they  had  been 
constantly  thrown  with  the  most  gallant  and  attrac- 
tive men  in  the  Confederate  Army,  and  they  had 
thus  acquired  an  aplomb  and  a  savoir  faire  ex- 
celling by  far  that  of  any  set  of  young  women  that 
I  have  ever  been  thrown  with.  Amongst  the  men 
were  to  be  found  the  choice  spirits  of  the  Confeder- 
ate Army.  There  were  youngsters  who  had  won 
the  stars  of  a  colonel  on  the  battlefield,  when 
under  twenty-one.  All  of  the  young  men  had 
served  throughout  the  war  in  the  ranks  or  with 
commissions,  and  this  made  a  camaraderie  amongst 
them  that  never  existed  anywhere  else  on  the  earth. 

Into  this  delightful  society  I  had  free  access, 
and  that  access  left  upon  me  a  deep  scar  which  I 
bore  for  a  long  time. 

I  was  an  awkward,  gawky  youth,  some  twenty- 
three  years  of  age  when  I  arrived  in  Richmond. 
My  clothes  were  of  the  cut  of  the  countryman  and 
my  ways  and  manners  very  much  the  same.  There 
dwelt  then  in  Richmond  a  young  girl  of  nineteen, 
who  was  more  beautiful  and  fascinating  than  Cleo- 
patra was  ever  thought  to  be  by  either  Caesar  or 
Mark  Antony.  Her  initials  were  M.  R.  Her 
eyes  were  of  the  deepest  blue,  her  voice  was  softer 
and  more  tender  than  any  strain  in  Tannhauser's 
Song  to  the  Evening  Star,  and  she  had  a  soft  poise 
and  balance  that  captivated  any  man  who  fell 
under  her  influence  the  moment  he  heard  her  speak 


68  SOME  REMINISCENCES 

a  word.  After  arriving  in  Richmond  I  soon  made 
the  acquaintance  of  this  fairy,  and  of  course  at 
once  fell  madly  in  love  with  her.  Everybody  knew 
how  madly  I  was  in  love  with  her  and  everybody 
said,  "What  a  fool  that  green  young  man  Royall 
is  to  dare  aspire  to  the  hand  of  Miss  M.  R."  She 
was  courted  by  all  the  best  men  in  the  land.  But 
that  did  not  restrain  me.  All  my  life  I  have  dared 
to  aspire  to  whatever  I  want,  and  obstacles  have 
only  quickened  my  desires.  I  went  on  loving  this 
fascinating  creature  and  working  out  schemes  deep 
down  in  my  inner  self  for  winning  her.  I  soon 
declared  my  love  to  her,  and  was  of  course  told 
that  she  could  not  think  of  me.  Did  that  moder- 
ate my  ardor?  Well,  I  should  think  not.  It  simply 
increased  it.  I  made  that  girl's  life  a  burden  to 
her.  I  asked  myself  always,  "Why  am  I  not  as 
worthy  of  her  as  any  other?  No  man  can  love 
her  as  I  do.  I  shall  win  her."  I  persisted  day  in 
day  out,  month  in  month  out,  year  in  year  out, 
and  after  a  while  I  saw  I  was  gaining  a  foothold. 
We  had  quarrel  after  quarrel,  and  for  days 
and  sometimes  weeks  we  would  not  speak.  But 
I  saw  she  was  yielding,  and  when  I  was  alone  I 
was  ready  to  dash  my  head  against  the  wall  in 
recognition  of  the  thought.  In  the  end  she  yielded 
and  admitted  that  she  cared  for  me.  No  man  can 
imagine  what  ecstasy  I  enjoyed  while  we  were  en- 
gaged.    But  clouds  arose  upon  our  horizon  and 


SOME  REMINISCENCES  69 

I  can  never  forget  that  day  we  parted.  I  was 
a  wounded  man  from  the  hour  the  separation  oc- 
curred. 

She  was  at  a  Virginia  mountain  resort  that  sum- 
mer, and  I,  like  a  fool,  went  there.  She  was  chap- 
eroned by  her  friend,  Mrs.  T.  D.  A  talented  and 
charming  old  widow  named  Mrs.  R.  S.  sat  at  their 
table  with  them.  One  night  my  friend  E.  F.  told 
me  Mrs.  R.  S.  was  going  to  seat  a  gentleman 
named  R.  J.,  who  had  arrived  that  day,  at  their 
table,  and  that  Mrs.  T.  D.  objected  very  much  to 
his  being  placed  there.  I  knew  all  about  R.  J. 
He  was  a  little  dissipated,  but  he  was  a  gentleman 
and  had  served  through  the  war  with  great  gal- 
lantry as  a  Confederate  soldier.  I  knew  that  what 
was  in  my  mind  would  probably  cause  him  to  chal- 
lenge me  to  a  deadly  duel,  but  that  did  not  amount 
to  a  moment's  consideration  with  me.  The  only 
thing  that  counted  with  me  was  the  fact  that  Mrs. 
T.  D.  objected  to  his  being  at  her  table  and  that 
no  doubt  Miss  M.  R.  shared  in  the  objection.  My 
life  was  of  no  moment  where  Miss  M.  R.'s  wishes 
were  involved.  I  at  once  said  to  E.  F.,  "Mrs.  T. 
D.  is  my  relative,  and  if  she  does  not  want  that 
gentleman  at  her  table,  he  shall  not  be  put  there." 
I  then  went  up  on  the  long  porch  where  I  knew 
Mrs.  R.  S.  was  in  conversation  with  R.  J.  I  called 
her  to  one  side  and  asked  her  if  it  was  true  she  pro- 
posed to  put  R.  J.  at  Mrs.  T.   D.'s  table.     She 


7o  SOME  REMINISCENCES 

said  it  was.  "Then,"  said  I,  "you  must  not  do  it." 
In  great  surprise  she  asked  why.  I  replied,  "Be- 
cause I  do  not  wish  it  and  will  not  allow  it."  She 
said  she  would  put  him  there  anyway.  I  replied 
that  if  she  did  it  would  become  my  disagreeable 
duty  to  take  him  away.  She  did  not  put  him  at 
the  table,  and  I  did  not  have  the  duel  that  I  ex- 
pected to  result.  I  merely  mention  this  incident, 
very  disreputable  to  me,  I  admit,  to  show  how 
deeply  and  desperately  I  loved  that  girl.  As  I 
have  said,  we  separated,  and  she  married  a  man 
who  lived  in  New  York.  Though  I  had  not 
spoken  to  her  in  two  years,  she  wrote  me  a  sweet 
note  inviting  me  to  her  wedding.  I  did  not  go, 
but  I  went  that  night  to  a  faro  bank,  where  I  lost 
all  the  money  I  had  about  me  and  also  a  handsome 
overcoat  that  had  cost  me  $75,  a  sum  to  be  taken 
notice  of  by  us  young  rebels.  I  was  heart-broken 
and  became  dissipated  and  lost  ten  of  the  most 
valuable  years  of  my  life.  But  in  time  I  became 
my  former  self  and  married  my  present  wife,  Miss 
Judith  Page  Aylett,  a  great-granddaughter  of 
Patrick  Henry,  who  has  made  ample  compensation 
to  me  for  all  that  I  lost. 

One  incident  of  the  year  1873  in  which  I  played 
a  leading  part  made  a  great  noise  at  the  time. 
Miss  Mary  Triplett,  one  of  the  most  beautiful 
women  ever  created  by  the  Almighty,  was  at  that 


SOME  REMINISCENCES  71 

time  a  reigning  belle  in  Richmond.  Page  Mc- 
Carty,  an  attractive,  devil-may-care  sort  of  fellow, 
who  then  lived  there,  fell  desperately  in  love  with 
her,  and  it  was  generally  understood  that  they  had 
become  engaged  to  be  married.  All  at  once  Miss 
Mary  broke  off  with  him  and  went  to  Europe, 
where  she  stayed  possibly  a  year.  When  she  re- 
turned she  would  not  speak  to  McCarty  and  would 
never  afterward  have  anything  to  do  with  him. 
We  had  a  german  club  that  met  once  in  two  weeks. 
The  club  was  usually  led  by  a  reckless,  bright, 
audacious  fellow  named  Sprigg  Campbell.  At  one 
of  their  meetings  Campbell  contrived  a  figure  that 
would  throw  McCarty  and  Miss  Triplett  together 
for  a  dance.  It  was  a  wanton  act  intended 
for  cleverness.  They  met,  commenced  to  dance, 
but  after  a  turn  or  two,  Miss  Triplett  disengaged 
herself  and  walked  to  her  seat.  Every  one  knew 
that  she  intended  it  as  a  slur  on  McCarty.  It 
threw  him  into  a  desperate  rage.  He  spoke  of  it 
to  me  after  the  german,  and  I  have  never  seen  a 
man  more  wrought  up  than  he  was. 

Amongst  the  young  men  of  Richmond  at  that 
time  was  one  named  John  B.  Mordecai.  He  was 
six  feet  two,  about  thirty-three  years  of  age,  and 
one  of  the  handsomest  men  I  have  ever  seen.  He 
had  served  gallantly  through  the  war  as  a  private 
soldier  in  the  Richmond  Howitzers,  was  a  fellow 
of  the  most  delightful  wit,  and  take  him  all  in  all, 


72  SOME  REMINISCENCES 

I  think  he  was  about  the  most  charming  companion 
I  have  ever  known.  Handsome,  gallant,  chival- 
rous, affectionate,  and  witty,  I  have  never  seen  his 
like.  He,  too,  was  desperately  in  love  with  Miss 
Triplett. 

The  night  of  the  german  and  after  it  was  over 
McCarty  went  to  the  Enquirer  newspaper  and 
offered  them  the  following  verses  which  the  paper 
published  next  morning: 

"When  Mary's  queenly  form  I  press 

In  Strauss'  latest  waltz, 
I  would  as  well  her  lips  caress 

Although  those  lips  be  false. 

"For  still  with  fire  love  tips  his  dart, 

And  kindles  up  anew 
The  flames  which  once  consumed  my  heart 

When  those  dear  lips  were  true. 

"Of  form  so  fair,  of  faith  so  faint, 

If  truth  were  only  in  her; 
Though  she'd  be  then  the  sweetest  saint, 

I'd  still  feel  like  a  sinner." 

I  was  a  bachelor  then  and  took  my  meals  usually 
at  Gerots'  restaurant.  The  next  morning  after 
the  german,  I  was  in  Gerots'  getting  my  breakfast, 
and  had  just  read  these  verses  in  the  Enquirer  when 
John  Mordecai  came  in.  He  took  up  the  paper 
and  his  eyes  fell  on  the  verses.  He  understood 
the  whole  situation  at  once,  and  I  saw  his  face  get 


SOME  REMINISCENCES  73 

as  black  as  midnight.  Laying  down  the  paper  he 
said,  perceiving  that  I  understood  the  case,  "I  shall 
kill  that  fellow." 

I  remonstrated  with  him,  telling  him  it  was  a 
matter  that  he  had  no  right  to  interfere  with;  that 
Miss  Triplett  had  a  grown  brother  who  would  do 
whatever  was  proper  to  be  done  in  such  a  case, 
and  that  he  did  not  know  whether  she  or  her  family 
wanted  anything  done.  He  would  not  be  quieted, 
however,  but  went  off  to  our  mutual  and  very  dear 
friend,  Willie  Trigg,  to  consult  with  him.  Trigg 
told  him  exactly  what  I  had  told  him,  and  between 
us  we  got  him  to  promise  to  let  McCarty  alone. 

That  night  I  met  him  at  the  Richmond  Club, 
and  being  seated  together  on  a  sofa  he  proceeded 
to  denounce  McCarty  in  the  most  unmeasured 
terms.  A  relative  of  McCarty  overheard  him  and 
reported  the  denunciation  to  McCarty.  At  that 
time  duelling  was  dying  in  Virginia,  but  it  was  very 
far  from  dead.  McCarty  sent  a  friend  to  Morde- 
cai  demanding  a  retraction  and  apology,  which 
Mordecai  refused  to  make.  I  knew  that  McCarty 
said  he  had  not  written  the  verses  about  Miss  Trip- 
lett, but  about  another  lady  named  Mary,  and  I 
intervened  as  a  friend,  and  got  the  matter  patched 
up  upon  the  basis  of  the  verses  having  been  written 
about  another  person.  Thereupon  the  matter  was 
supposed  to  be  closed. 

But  there  were  gossips  in  Richmond,  and  one, 


74  SOME  REMINISCENCES 

a  singularly  beautiful  and  intelligent  girl,  made  her 
tongue  busy  with  insinuations  that  McCarty  had 
backed  out  because  he  was  afraid.  These  things 
came  to  McCarty's  ear  and  put  him  in  a  terrible 
fury. 

A  short  time  afterward  Mordecai  entered  the 
barroom  of  the  Richmond  Club  where  McCarty 
and  Charley  Hatcher  were.  Mordecai  ordered  a 
drink,  and  while  it  was  being  prepared  McCarty 
walked  up  and  down  the  floor  right  by  Mordecai, 
making  reference  to  the  affair  and  making  threats 
of  what  he  would  do  the  next  time  he  got  a  chance. 
Presently  Mordecai  walked  up  to  him  and  said, 
"Do  you  mean  those  remarks  for  me?"  McCarty 
replied  in  the  most  insulting  manner,  "And  who 
are  you,  sir?"  Mordecai  answered,  "I  am  a  gentle- 
man, at  least."  McCarty  said  as  offensively  as 
possible,  "Ah!"  and  Mordecai  instantly  struck  him 
a  powerful  blow  in  the  face  which  cut  all  the  skin 
from  over  his  left  eye  and  felled  him  to  the  floor. 
Mordecai  then  jumped  on  him,  seizing  both  his 
wrists,  and  had  him  pinned  to  the  floor,  when  I, 
hearing  the  noise,  rushed  in  and  separated  them. 

McCarty  at  once  sent  Mordecai  a  peremptory 
challenge  by  Col.  Wm.  B.  Tabb,  and  it  was  agreed 
that  the  duel  should  come  off  at  once  near  Oak- 
wood,  McCarty  to  be  represented  by  Colonel  Tabb 
and  John  S.  Meredith;  Mordecai,  by  myself  and 
Willie  Trigg.     The  terms  were  that  they  were  to 


SOME  REMINISCENCES  75 

fire  at  ten  paces.  The  command  would  be,  "Fire — 
one,  two,  three."  They  could  fire  at  any  time 
after  the  word  "fire,"  but  not  after  the  word 
"three."  The  weapons  to  be  used  were  Colt's 
army  revolvers,  all  six  chambers  loaded. 

We  placed  the  men,  the  word  was  given,  both 
men  fired,  and  both  missed.  Tabb  said  to  Mc- 
Carty,  "Are  you  satisfied?"  McCarty  replied, 
"Oh,  no.  I  demand  another  fire."  I  have  quoted 
everything  exactly.  Again  the  word  was  given, 
both  men  fired  and  both  fell.  McCarty  was 
badly  wounded  by  a  shot  in  the  hip,  Mordecai  had 
been  struck  near  the  navel,  the  ball  penetrating 
the  intestines.  He  died  on  the  fourth  day  after  the 
duel.  McCarty  lingered  a  long  time  but  finally 
recovered,  and  in  a  trial  was  fined  $500  and  sent 
to  jail  for  six  months.  The  Governor  remitted  the 
jail  sentence  on  the  doctor's  certificate  that  it 
would  endanger  his  life. 

This  was  the  famous  duel  between  Mordecai 
and  McCarty.  There  were  several  duels  after  this, 
but  none  of  them  fatal,  and  the  duel  in  Virginia 
is  now  as  dead  as  Chatham's  ghost.  I  think 
Mordecai  was  one  of  the  knightliest  gentlemen  that 
ever  lived  on  this  earth.  He  was  shot  on  Friday, 
but  did  not  die  until  Tuesday.  Monday  night 
peritonitis  set  in  and  all  of  Tuesday  it  was  known 
he  must  die  and  he  knew  it  too.  They  urged  that 
he  should  send  for  a  minister  of  the  Gospel,  but  he 


76  SOME  REMINISCENCES 

replied,  "No,  I  shall  die  as  I  have  lived,"  and  he 
never  uttered  a  whimper.  An  hour  before  his  end- 
ing he  sent  for  me.  Putting  his  arms  around  my 
neck  he  pulled  my  ear  down  to  his  mouth  and 
whispered,  "Remember,  Royall,  what  I  told  you." 
I  answered,  "I  certainly  shall,  John."  It  was  a 
message  to  his  sweetheart. 

As  I  was  much  mixed  up  in  duels  while  they 
lasted,  although  bitterly  opposed  to  them  on  prin- 
ciple and  detesting  the  very  mention  of  them,  I 
shall  detail  here  all  that  I  propose  to  say  of  them. 

In  1 86 1  Bradley  T.  Johnson  was  a  handsome, 
stylish-looking  lawyer  of  about  thirty-three.  He 
lived  at  Frederick,  Maryland,  where  he  had  at 
that  time  acquired  much  reputation  as  a  lawyer 
and  public  man.  He  was  an  ardent  secessionist 
on  principle  and  believed  that  the  time  had  come 
for  the  South  to  secede  from  the  Union.  When 
the  Confederate  Government  was  established  at 
Richmond,  he  went  there  as  captain  of  a  company 
of  infantry  which  he  brought  from  Frederick.  In 
a  short  time  the  Maryland  companies  were  all  con- 
solidated into  the  First  Maryland  Infantry,  and 
Johnson  became  its  colonel. 

There  was  no  more  daring  and  gallant  soldier 
in  the  Confederate  Army  than  Johnson.  His 
regiment  was  with  Stonewall  Jackson  in  that  re- 
nowned campaign  of  his  in  the  Valley  of  Virginia 
in  1862,  and  it  contributed  most  materially  to  win- 


SOME  REMINISCENCES  77 

ning  Jackson's  prodigious  reputation.  Jackson, 
who  knew  a  soldier  the  moment  he  laid  eyes  on 
him,  was  continually  writing  Jeff  Davis  and  the 
Secretary  of  War,  urging  that  Johnson  should  be 
promoted  to  brigadier-general,  but  Mr.  Davis, 
hide-bound  to  one  of  his  pet  theories,  always 
answered  there  was  no  Maryland  brigade  for  him, 
as  if  we  were  not  to  have  the  services  of  the  most 
useful  man  in  the  army  if  there  was  no  command 
from  his  State. 

When  the  second  battle  of  Manassas  was 
fought  in  the  fall  of  1862  the  enlistment  of  the 
Maryland  regiment  had  expired.  They  were 
disbanded,  and  Johnson  was  without  a  commission 
and  without  a  command.  He  was  riding  at  that 
time  with  Stonewall  Jackson  as  a  sort  of  volunteer 
aide.  One  of  Jackson's  Virginia  brigades  was 
without  a  brigadier  and  Jackson  told  Johnson  he 
must  take  command  of  it.  Johnson  told  Jackson 
he  had  no  commission.  Jackson  replied  that  made 
no  difference ;  that  he  was  well  known  in  the  army 
as  a  colonel  and  wore  the  uniform  of  a  colonel,  and 
that  if  he  went  to  brigade  headquarters  with  his, 
Jackson's,  order  to  take  command  of  it,  everybody 
would  submit  to  his  orders,  and  so  the  case  proved 
to  be.  Though  without  a  commission,  Johnson 
made  one  of  the  greatest  fights  at  the  railroad  cut 
with  that  Virginia  brigade  that  was  ever  made  in 
war. 


78  SOME  REMINISCENCES 

At  one  time,  after  he  had  repulsed  one  of  the 
several  attacks  and  his  ammunition  was  almost  ex- 
hausted, he  detailed  all  of  the  orderly  sergeants  to 
go  out  on  the  field  and  get  all  the  cartridges  on  the 
dead  Federals.  While  the  orderly  sergeants  were 
all  in  a  group  dividing  this  ammunition  a  shell 
burst  amongst  them  and  prostrated  the  whole 
crowd.  This  of  course  produced  a  very  demoraliz- 
ing effect  on  the  brigade,  which  was  under  a  heavy 
artillery  fire,  and  Johnson,  calling  the  men  to  atten- 
tion, put  the  brigade  through  the  manual  of  arms 
as  though  it  had  been  at  a  holiday  picnic* 

Johnson  came  back  into  the  service,  and  finally 
his  splendid  services  compelled  the  administration 
to  make  him  a  brigadier-general,  with  which  rank 
he  served  to  the  end.  He  settled  at  Richmond 
when  peace  came  to  practice  law,  and  he  had  very 
great  success   from  the  beginning.     By    1873    ne 

*Johnson  told  me  the  following  incident  of  the  first  battle  of 
Manassas.  He  was  then  major  of  the  First  Maryland  Infantry. 
His  regiment  was  part  of  the  force  which  Joseph  E.  Johnston 
brought  from  the  Valley  in  time  to  take  part  In  the  battle.  Col. 
Arnold  Elzey  commanded  a  regiment  that  day  in  Gen.  E.  Kirby 
Smith's  brigade,  and  he  was  senior  colonel  and  would  be  briga- 
dier-general if  anything  happened  to  Smith.  He  was  very  ambi- 
tious, and  was  heard  to  mutter  when  buckling  on  his  sword  that 
morning,  "Six  feet  of  ground  or  a  yellow  sash  to-day." 

Johnson's  regiment  was  double-quicked  from  the  depot  to  the 
battlefield,  and  when  Johnson  got  there  his  tongue  was  hanging 
out.  He  went  up  to  Elzey,  who  was  also  from  Maryland,  and 
asked  him  if  he  could  not  in  some  way  get  him  a  horse.  Just 
then  the  enemy  fired  a  volley  and  Smith  fell  off  of  his  horse 
badly  wounded.  "There,"  said  Elzey,  "God  is  just.  Go  and 
get  Smith's  horse." 


SOME  REMINISCENCES  79 

was  a  man  of  very  independent  means,  and  in  that 
year  he  offered  me  a  partnership,  which  I  very 
gladly  accepted.  We  were  as  intimate  friends  up 
to  the  day  of  his  death  as  ever  lived.  No  two 
brothers  could  have  been  closer,  and  I  loved  him 
tenderly  and  sincerely. 

William  Mahone  was  born  in  Virginia  in  one 
of  the  counties  south  of  the  James  River,  between 
Petersburg  and  Norfolk.  He  received  a  military 
education  at  the  Virginia  Military  Institute,  and 
this  enabled  him  to  get  the  command  of  a  Virginia 
regiment  of  infantry  at  the  beginning  of  the  civil 
war.  He  was  very  soon  given  a  brigade  of  five 
Virginia  regiments,  so  that  it  may  be  said  that  he 
commenced  the  war  as  a  brigadier-general.  His 
brigade  was  one  of  the  finest  in  the  Confederate 
Army,  and  it  did  some  of  the  most  heroic  fighting 
that  was  seen  during  the  war.  Mahone  was  a 
splendid  organizer  and  looked  after  his  men  with 
the  most  careful  attention,  so  that  the  brigade  was 
always  in  first-class  condition.  The  senior  colonel 
in  the  brigade  was  D.  H.  Weisiger,  who  became 
brigadier-general  commanding  the  brigade  when 
Mahone  was  made  major-general.  Weisiger  com- 
manded the  brigade  in  almost  every  engagement  it 
was  in.  He  has  frequently  told  me  that  he  never 
saw  Mahone  under  fire  and  that  he  never  com- 
manded the  brigade  in  a  single  action. 


8o  SOME  REMINISCENCES 

In  July,  1864,  General  Grant  blew  up  a  part 
of  General  Lee's  lines  in  front  of  Petersburg  with 
a  mine  that  he  exploded.  Lee  had  known  of  this 
mine  for  some  time,  and  had  concentrated  an  artil- 
lery fire  on  the  point  that  made  it  simply  impossible 
for  any  troops  to  come  through  the  gap  made  in 
the  lines  until  he  was  able  to  reinforce  the  point. 
Two  brigades  of  Mahone's  division,  the  Virginia 
brigade  and  the  Georgia  brigade,  were  brought  up 
by  a  covered  way  to  retake  the  position  then  occu- 
pied by  a  large  force  of  Union  troops.  Mahone's 
brigade,  under  Weisiger,  marched  out  of  the  cov- 
ered way,  leaving  Mahone  in  it,  formed  in  line 
some  hundred  yards  from  the  point  of  attack,  and 
charged  the  enemy  occupying  our  lines.  It  was  a 
heroic  act  and  was  perfectly  successful.  Just  as 
poor  old  Weisiger  had  got  possession  of  our  lines 
and  of  everything  in  them,  he  was  shot  through  the 
body.  He  was  carried  back  to  the  covered  way 
to  where  Mahone  was.  Weisiger  gave  me  this 
account  of  what  occurred.  Mahone  said,  "Weisi- 
ger, why  in  the  hell  are  you  and  old  Joe  Johnston 
always  getting  yourselves  shot?"  Weisiger  said 
he  thought  it  was  all  over  with  him,  and  he  was 
therefore  a  little  indifferent  about  insubordination, 
and  so  he  answered,  "General  Mahone,  if  you 
would  go  where  General  Johnston  and  I  go,  you 
would  get  shot  sometimes,  too." 

Possibly  I  am  not  doing  Mahone  justice  in  this 


SOME  REMINISCENCES  Si 

sketch  of  him,  because  I  hated  him  and  he  is  the 
only  man  I  ever  hated.  For  a  number  of  years 
he  was  engaged  in  a  deliberate  attempt  to  dishonor 
my  native  State  by  forcing  a  repudiation  of  her 
public  debt,  and  in  the  contest  which  grew  out  of 
that  attempt  I  came  to  hate  him.  My  feeling 
toward  him  may  be  judged  of  by  the  following  in- 
cident. 

In  some  way  or  another,  all  at  once,  a  marble 
bust  of  Mahone  appeared  in  the  State  Public  Li- 
brary amongst  her  dignitaries  and  honored  sons. 
Everybody  resented  it,  and  I  made  a  diligent  effort 
to  find  out  by  what  authority  it  was  put  there;  but 
always  found  that  whenever  I  got  to  the  critical 
point  and  was  just  about  to  find  out  something 
that  would  count,  all  sources  of  information  sud- 
denly closed  up  and  I  could  get  absolutely  nothing. 
In  one  of  the  suits  about  our  public  debt  which  I 
carried  to  the  Supreme  Court  of  the  United  States 
(a  full  account  of  this  whole  matter  will  be  given 
later  on),  the  Supreme  Court  reversed  the  judg- 
ment of  the  Hustings  Court  of  the  city  of  Rich- 
mond and  gave  me  costs  against  the  State,  amount- 
ing to  something  like  $120.  I  applied  to  the  Hus- 
tings Court  of  the  city  of  Richmond  for  an  execu- 
tion against  the  State  and  it  was  given  to  me,  and 
I  instructed  the  officers  to  go  into  the  Public  Li- 
brary and  levy  the  execution  on  Mahone's  bust  and 
nothing  else.     I  intended  to  buy  it  at  the  sale,  and 


82  SOME  REMINISCENCES 

then  publicly  smash  it  into  small  fragments  on 
the  public  square.  The  officer  went  into  the 
Capitol  building  to  do  as  I  had  directed,  but  Fitz- 
hugh  Lee,  who  was  then  Governor,  hearing  of 
the  affair,  had  the  officer  forcibly  ejected  from  the 
building,  and  he  refused  to  make  any  other  levy 
and  so  I  failed  to  get  Mahone's  bust  and  lost  my 
costs  also.     We  will  go  on  now  with  Mahone. 

He  was  as  vain,  conceited,  and  egotistical  a 
little  chap  as  ever  had  anything  to  do  with  Vir- 
ginia's affairs.  At  the  end  of  the  war  he  had  a 
very  considerable  military  reputation,  but  some  sol- 
diers said  it  was  a  reputation  made  for  him  by 
the  newspapers.  It  has  always  been  persistently 
claimed  that  he  kept  a  newspaper  correspondent 
hanging  about  his  headquarters  to  write  him  up 
upon  all  occasions.  However  that  may  be,  the 
following  are  undoubted  and,  in  the  main,  recorded 
facts. 

In  June,  1870,  there  appeared  in  the  Historical 
Magazine,  of  New  York,  a  monthly  of  great  in- 
fluence and  importance,  an  article  entitled,  "A  Mil- 
itary Memoir  of  William  Mahone,  Major-General 
in  the  Confederate  Army,"  by  Gen.  J.  Watts  De 
Peyster.  The  article  stated  that  it  had  been  sub- 
mitted to  General  Mahone  before  publication,  and 
that  it  was  approved  of  by  him.  The  article  was, 
perhaps,  one  of  the  most  fulsome  that  was  ever  ap- 
proved by  any  man.     It  said  that  Mahone  was  a 


SOME  REMINISCENCES  83 

better  soldier  than  Longstreet,  and  the  equal,  and 
in  some  respects  the  superior,  of  Stonewall  Jackson. 
All  this  would  have  passed  with  nothing  but  the 
contempt  of  judicious  men  if  it  had  been  all.  But 
it  was  not  all.  The  article  went  on  to  disparage 
some  other  soldiers,  and  Gen.  Jubal  A.  Early 
amongst  them.  I  knew  General  Early  very  inti- 
mately, and  if  Mahone  had  asked  my  opinion  be- 
fore he  published  his  article  I  should  have  told 
him  to  be  careful  about  what  he  said  of  him. 
General  Early  was  a  rugged  character,  but  one  of 
the  loftiest,  sincerest,  and  most  loyal  men  that  ever 
lived,  and  the  last  man  in  the  world  to  submit  to 
an  injustice.  Accordingly,  when  he  learned  of  this 
article  he  wrote  Mahone  a  note  calling  his  atten- 
tion to  the  unjust  references  to  himself,  and  Ma- 
hone, being  then  in  the  pride  and  plenitude  of  a 
power  that  I  will  explain  further  on,  treated 
Early's  note  in  the  most  cavalier  manner,  and  made 
no  answer  at  all.  Thereupon  General  Early 
wrote  him  a  twenty-page  letter  reviewing  his  whole 
career  in  the  war  and  out  of  the  war.  It  was  such 
a  letter  as  no  one  man  ever  received  and  submitted 
to  in  the  history  of  the  world.  In  those  days  of 
duelling  it  meant  a  fight. 

Well,  Mahone  had  no  stomach  for  a  fight,  and 
so  he  got  a  number  of  the  most  prominent  people 
in  the  State  to  intervene,  Gen.  Bradley  T.  Johnson 
amongst  them,  and  the  matter  was  adjusted  upon 


84  SOME  REMINISCENCES 

the  basis  that  Mahone  should  have  the  article  re- 
published in  the  Historical  Magazine  with  all  the 
offensive  references  to  General  Early  omitted,  and 
this  was  done.  It  was  the  general  understanding 
at  the  time  that  the  republication  cost  Mahone 
$10,000. 

When  the  war  ended,  Mahone,  by  reason  of 
his  newspaper  military  reputation  and  the  wide 
acquaintance  with  men  that  his  high  position  had 
made  for  him,  had  a  large  following,  and  he  was 
ambitious  and  eager  to  use  such  position  as  he  had 
made  for  himself  for  all  that  could  be  made  out 
of  it.  There  was  a  railroad  that  had  been  built 
before  the  war  from  Norfolk  to  Petersburg,  called 
the  Norfolk  and  Petersburg  Railroad.  There 
was  another  called  The  Southside  Railroad  that 
ran  from  Petersburg  to  Lynchburg,  and  another, 
The  Virginia  and  Tennessee,  that  ran  from  Lynch- 
burg, Virginia,  to  Bristol,  Tennessee.  Now  these 
roads  made  a  continuous  line  of  more  than  four 
hundred  miles.  The  State  of  Virginia  owed  a 
large  public  debt,  and  the  money  that  she  owed 
had  been  borrowed  to  contribute  to  the  building  of 
the  various  railroads  in  the  State.  In  this  way  she 
owned  the  controlling  voice  in  the  three  railroads 
named.  Directly  after  the  war  Mahone  set  him- 
self to  work  to  control  the  Legislature  of  the  State. 
He  got  control  of  it  and  induced  it  to  consolidate 
the  three  roads  named  into  one  road,  The  Atlan- 


SOME  REMINISCENCES  85 

tic,  Mississippi  and  Ohio.  The  State  voted  him 
president  of  the  new  road  with  a  salary  of  $25,000 
a  year.  Thereupon  Mahone  became  a  very  great 
power  in  the  State  and  aspired  to  its  absolute  con- 
trol. 

Along  in  1874-75,  Gen.  Bradley  T.  Johnson, 
having  acquired  a  competence  in  the  practice  of 
law,  desired  to  go  into  public  life,  and  he  com- 
menced by  going  into  the  council  of  the  city  of 
Richmond.  Mahone  knew  instinctively  that  John- 
son in  public  life  meant  danger  to  him,  Mahone. 
When  the  election  for  the  City  Council  was  to  come 
off,  Mahone,  who  lived  in  Petersburg,  came  over 
to  Richmond  and  installed  himself  in  the  Rich- 
mond Whig  building  (the  Whig  newspaper  being 
generally  understood  to  be  owned  by  him),  and 
Johnson  believed  that  he  had  done  it  with  the  in- 
tention of  interfering  with  his  election.  Accord- 
ingly, Johnson  scattered  a  circular  all  over  the  city 
informing  the  people  of  the  facts  as  he  believed 
them  to  be,  and  urging  the  people  to  turn  out  and 
vote  down  this  interference  with  their  affairs. 
Mahone,  thereupon,  enclosed  one  of  these  circulars 
to  Johnson  and  asked  him  if  he  was  its  author. 
Johnson  replied  that  he  was.  Mahone  answered, 
denouncing  it  as  a  malicious  falsehood,  and,  of 
course,  in  those  days  that  meant  a  duel. 

Johnson  and  I  conferred  over  the  matter,  and 
Johnson  said  he  would  challenge  Mahone  to  a  duel. 


86  SOME  REMINISCENCES 

He  said  Col.  R.  Snowden  Andrews  was  the  most 
distinguished  Maryland  soldier  then  alive,  and 
that  he  wanted  him  to  act  as  his  second.  But  An- 
drews was  away  from  Richmond  and  he  feared 
Mahone  might  make  some  publication  of  the  affair 
before  he  could  get  him  here.  It  was  therefore 
agreed  between  us  that  I  should  take  a  note  to  Ma- 
hone informing  him  that  Andrews  was  telegraphed 
for  and  that  as  soon  as  he  arrived  a  hostile  note 
would  be  sent  him.  I  took  this  note  to  the  Whig 
building  and  delivered  it  to  Mahone,  and  this  was 
the  one  solitary  interview  that  I  ever  had  with  him, 
though  our  lives  touched  at  many  points  from  that 
time  on  to  the  time  of  his  death.  The  Virginia 
Constitution  disqualified  any  one  to  hold  office  who 
took  part  in  a  duel.  As  Johnson  was  going  into 
politics  he  did  not  want  to  send  a  challenge  and 
thus  disqualify  himself  if  there  was  to  be  no  duel, 
so  Andrews  arranged  with  Mahone  that  all  parties 
would  meet  at  Weldon,  North  Carolina,  at  a  given 
time,  and  that  he  would  there  give  the  final  chal- 
lenge when  nothing  could  interrupt  the  duel. 
Johnson  went  to  Baltimore,  went  down  the  bay  to 
Norfolk,  took  the  train  to  Weldon,  and  was  at  the 
appointed  spot  at  the  appointed  hour.  Mahone 
went  to  Norfolk  and  was  there  arrested  on  the 
charge  of  being  about  to  engage  in  a  duel,  and 
was  bound  over  to  keep  the  peace. 

He   had   got  that  chivalrous   gentleman,    Cap- 


SOME  REMINISCENCES  87 

tain  James  Barron  Hope,  to  act  as  his  second,  and 
Captain  Hope  came  to  Weldon  and  reported  Ma- 
hone's  arrest  and  gallantly  offered  to  take  his 
principal's  place  in  the  duel.  Colonel  Andrews 
promptly  declined  the  offer  upon  the  ground  that 
General  Johnson  had  no  sort  of  quarrel  with  Cap- 
tain Hope,  but  on  the  contrary  had  the  highest 
respect  for  and  regard  for  him,  and  could  not 
think  of  engaging  in  anything  hostile  to  Captain 
Hope. 

The  next  duel  or  "fiasco"  that  I  was  connected 
with  was  between  General  Kemper  and  General 
Mahone.  Kemper  was  the  commander  of  one  of 
those  Virginia  brigades  that  made  that  immortal 
charge  of  Pickett's  division  at  Gettysburg  and  he 
had  been  left  for  dead  upon  the  battlefield.  He 
recovered  from  his  wound  and  had  been  since 
Governor  of  Virginia. 

One  day  I  met  that  sturdy  old  warrior,  Gen. 
Eppa  Hunton,  who  commanded  the  Eighth  Vir- 
ginia in  Pickett's  charge  at  Gettysburg,  and  he  told 
me  General  Kemper  wanted  to  see  me  at  the  Ex- 
change Hotel.  I  went  to  see  Kemper,  and  found 
him  with  a  note  from  Mahone  asking  him  if  he 
had  been  correctly  reported  in  a  reference  to  him  in 
the  Dispatch  newspaper,  and  he  asked  me  to  repre- 
sent him  in  the  affair.  The  reference  was  this. 
We  were  then  in  the  midst  of  the  political  cam- 
paign in  which  Mahone  led  a  party  that  proposed 


88  SOME  REMINISCENCES 

to  repudiate  a  great  part  of  the  State  debt.  I  was 
making  speeches  over  the  State  for  the  support  of 
the  public  credit,  and  Kemper  was  doing  the 
same.  At  a  public  meeting  at  Prince  George  Court 
House,  a  short  time  before,  Kemper  had  said, 
"What  would  you  do,  people  of  Prince  George,  if 
a  man  should  come  to  you  urging  you  to  do  with 
your  private  debts  what  William  Mahone  is  urg- 
ing you  to  do  with  your  public  debt?  You  would 
drive  him  out  of  your  county  to  the  tune  of  the 
rogue's  march." 

Well,  there  was  a  good  deal  of  correspondence 
conducted  for  General  Kemper  by  Gen.  Jubal 
Early  and  myself  which  finally  resulted  in  Kemper 
saying  in  effect  he  said  that  and  he  said  nothing 
else,  and  Mahone  saying  in  effect  if  that  was  all 
Kemper  said  he  was  satisfied. 

The  next  duel  I  was  connected  with  was  between 
Col.  Thomas  Smith  of  Warrenton,  Virginia,  and 
W.  C.  Elam.  editor  of  the  Whig,  the  organ  of  the 
Readjuster  or  Repudiator  party,  and  there  was 
nothing  sham  about  that  duel,  I  promise  you. 
Colonel  Smith  was  the  gallant  and  fearless  colonel 
of  the  Thirty-sixth  Virginia  Regiment  of  infantry 
during  the  war.  His  honorable  father  had  been 
a  member  of  Congress  from  Virginia  before  the 
war,  and  had  also  been  Governor  of  the  State  be- 
fore the  war.  At  the  age  of  sixty-four  he  had 
taken   the   field   at   the   beginning  of  the   war  as 


SOME  REMINISCENCES  89 

colonel  of  the  Forty-ninth  Virginia  Infantry,  and 
had  gone  up  by  successive  promotions  won  by 
wounds  upon  the  battlefield  to  the  rank  of  major- 
general.  In  1864  the  people  of  Virginia  took  him 
from  the  field  and  made  him  their  Governor  again. 

One  evening  I  got  a  telegram  from  Colonel 
Smith  asking  me  to  come  to  Washington  City.  I 
went,  and  found  him  accompanied  by  Gen.  Wm. 
H.  Payne,  Capt.  A.  D.  Payne,  and  Bernard  P. 
Green.  They  showed  me  an  editorial  article  in 
the  Richmond  Whig,  which  contained  a  scandal- 
ous, offensive  and  false  reference  to  Colonel  Smith's 
father,  and  Smith  declared  his  intention  of  holding 
its  author  to  a  personal  account.  I  was  a  bachelor 
then,  and  lived  in  a  small  house  all  to  myself,  with 
my  body  servant,  the  most  reliable  colored  man  I 
ever  knew.  He  was  a  prince  in  his  race.  So  I 
said,  "Come  along,  gentlemen.  I'll  stow  you 
away  in  my  house  and  we'll  fix  matters  up,  and 
have  the  affair  to  come  off  secundum  artem."  So 
they  all  came  to  my  house,  and  I  stowed  them 
away  under  cover  of  night. 

Green  made  the  arrangements  for  the  duel, 
which  was  to  take  place  at  sunrise  near  Oakwood. 
I  knew  the  firm  of  Tignor  &  Co.,  gunsmiths,  had  a 
pair  of  duelling  pistols  that  had  been  used  in  a 
duel  between  Colonel  Cameron,  afterward  Gover- 
nor of  the  State,  and  Robert  W.  Hughes,  after- 
ward United  States  District  Judge  of  Virginia,  in 


9o  SOME  REMINISCENCES 

which  Cameron  had  been  badly  wounded.  I  was 
afraid  to  go  to  Tignor's  myself  lest  i  might  arouse 
suspicion,  so  I  got  my  friend,  Corbin  Warwick,  to 
go  there  and  get  these  pistols.  Tignor  sent  with 
them  powder  and  ball  and  a  small  powder  flask, 
which  had  a  very  small  powder  measurer.  He 
had  told  Warwick  to  use  two  of  these  measures 
when  loading,  but  Warwick  had  forgotten  to  tell 
me  that.  When  I  came  in  with  the  pistols  Colonel 
Smith  called  attention  to  the  small  charge  of  pow- 
der that  the  flask  gave  and  insisted  the  charge 
should  be  doubled.  But  I  insisted  the  man  knew 
how  to  load  his  own  pistols,  and  was  so  insistent 
about  this  that  they  all  acquiesced.  I  saved  Elam's 
life  by  it.  The  pistols  were  loaded  with  this  small 
charge  and  when  the  parties  fired  Smith  was  un- 
harmed, but  he  hit  Elam  squarely  on  the  chin, 
smashing  that  organ  into  tatters.  If  the  pistol 
had  had  a  full  charge  of  powder  the  ball  would 
have  gone  through  Elam's  neck  and  there  would 
have  been  no  more  of  Elam.  Elam  was  unable 
to  continue  the  duel  and  it  ended  there. 

My  friends  bought  the  pistols  and  had  inserted 
into  the  stock  at  the  breech  a  silver  scroll  on  which 
is  engraved,  uTo  William  L.  Royall,  from  his 
friends,  Col.  Thomas  Smith,  Gen.  Wm.  H.  Payne, 
Captain  A.  D.  Payne,  Bernard  P.  Green."  They 
presented  them  to  me,  and  I  prize  them  very  highly 
as  a  memento  of  four  very  dear  friends  who  were 
as  high  and  typical  Virginians  as  ever  lived. 


SOME  REMINISCENCES  91 

The  next  duel  that  I  was  connected  with  was  be- 
tween Richard  F.  Beirne,  editor  of  the  State,  an 
evening  newspaper  published  in  Richmond,  and 
the  same  Elam,  editor  of  the  Whig,  the  organ  of 
the  Readjuster  or  Mahone  party. 

When  Mahone  and  his  Readjuster  party  got 
possession  of  the  State  in  the  election  of  1879,  °^ 
which  I  shall  give  a  full  account  further  on,  I  saw 
there  was  no  more  chance  for  me  in  Virginia,  so 
I  pulled  up  stakes  and  moved  to  New  York  City 
to  practice  law.  The  feeling  between  parties  in 
Virginia  became  bitterer  in  that  political  contest 
than  it  ever  was  anywhere  in  the  world,  I  believe. 
I  will  tell  all  about  it  when  I  reach  that  part  of 
my  narrative,  and  I  may,  perhaps,  be  able  to  paint 
it  so  as  to  make  those  unacquainted  with  the  facts 
realize  to  some  extent  how  intense  the  feeling  had 
become. 

I  had  been  selected  by  the  creditors  of  the  State 
of  Virginia  to  represent  them  in  the  enormous  liti- 
gation that  grew  up  between  them  and  the  State  of 
Virginia  as  the  result  of  Mahone's  triumph,  and 
I  was  in  Richmond  attending  to  some  matters  in- 
volved in  that  litigation.  Bierne  in  his  State  news- 
paper had  been  taunting  the  Readjuster  party 
with  all  the  sins  that  we  imputed  to  them,  with 
exceedingly  mild  replies  from  the  Whig.  But 
one  morning  the  Whig  appeared  with  one  of  the 
most  insulting  articles,   aimed  directly  at  Beirne, 


92  SOME  REMINISCENCES 

that  it  is  possible  to  conceive  of.  Beirne  lived  at 
Ashland,  a  village  on  the  Richmond,  Fredericks- 
burg and  Potomac  Railroad,  about  fifteen  miles  out 
of  Richmond,  and  he  read  this  article  in  the  morn- 
ing before  he  came  into  the  city.  He  immediately 
wrote  a  challenge  to  Elam,  and  knowing  I  was  in 
Richmond  he  sent  it  by  his  brother-in-law,  a  lad 
of  about  nineteen,  to  me,  with  the  request  that  I 
deliver  it  to  Elam  and  represent  him  as  his  second 
in  the  duel.  Beirne  then  put  a  pair  of  duelling  pis- 
tols into  his  buggy  and  drove  off  to  Hewlett,  a  sta- 
tion on  the  Chesapeake  and  Ohio  Railroad,  where 
he  could  be  communicated  with  by  telegraph. 

The  young  gentleman  delivered  the  message  to 
me.  "Now,"  said  I  to  him,  "I  think  this  is  pretty 
hard  on  me  after  the  part  I  have  been  compelled  to 
play  in  these  affairs  to  drag  me  thus  into  another. 
This  is  a  political  quarrel,  and  I  have  quit  Virginia 
and  am  no  longer  connected  with  her  politics  in 
any  way.  Beirne  ought  to  have  sent  his  message 
to  one  of  the  Virginia  politicians,  who  are  the 
people  on  whom  this  burden  rests.  However," 
said  I,  "Beirne  must  not  be  left  in  the  lurch,  what- 
ever takes  place.  You  go  and  deliver  this  note  to 
Elam,  and  tell  him  I  will  provide  some  one  to  make 
the  necessary  arrangements  or  will  act  myself."  I 
then  hunted  up  Capt.  Geo.  D.  Wise,  the  member 
of  Congress  from  that  district,  and  told  him  some 
of    them    should    take    up    the    representation    of 


SOME  REMINISCENCES  93 

Beirne.  He  conceded  it,  but  said  he  did  not  see 
why  it  should  fall  upon  him.  "Then,"  said  I,  "let 
us  throw  up  heads  and  tails  whether  you  shall  rep- 
resent him  or  I  shall."  He  agreed  to  this,  we 
threw,  and  I  won. 

I  immediately  sent  word  to  Elam  that  I  was 
ready  to  go  on  with  the  affair,  and  he  sent  to  me  a 
Mr.  R.  and  a  very  notorious  character  who 
was  called  "J."  This  old  fellow  was  said 
to  have  been  imported  from  Missouri.  He 
had  only  one  eye,  but  cunning  and  craftiness  lurked 
largely  in  that  one.  As  soon  as  we  met  I  said, 
"Well,  gentlemen,  when  shall  the  affair  come  off?" 
They  insisted  that  it  should  come  off  that  after- 
noon in  the  vicinity  of  Richmond.  "But,"  said  I, 
"gentlemen,  I  have  already  told  you  Mr.  Beirne  is 
at  Hewlett,  forty  miles  from  Richmond,  and  it  is 
impossible  for  me  to  get  him  by  that  time."  They 
insisted,  however,  that  it  must  be  that  afternoon, 
and  I  instantly  suspected  a  little  bluff.  "Very 
well,"  said  I,  "you  are  two  and  I  am  only  one. 
Wait  here  a  few  moments  and  I  will  get  a  friend 
so  as  to  be  on  a  footing  of  equality  with  you."  I 
went  out  and  brought  back  with  me  Captain  Wise. 
"Now,"  said  I,  "I  am  ready  for  business.  Do  you 
still  insist  that  the  affair  shall  come  off  this  after- 
noon?" They  said  they  did.  "Very  well,  then," 
I  said,  "I  withdraw  the  challenge."  They  saw  at 
once  what  I  meant,  which  was  that  I  would  bring 


94  SOME  REMINISCENCES 

Beirne  to  Richmond  and  renew  the  challenge  and 
be  ready  to  fight  at  any  moment.  Then  they  got 
reasonable.  They  asked  me  when  I  could  be  ready. 
I  said  they  understood  the  facts  as  well  as  I  did, 
but  I  would  suggest  that  we  meet  the  next  after- 
noon at  six  o'clock  at  Hanover  Junction,  which 
was  about  half  way  between  Richmond  and  Hew- 
lett. This  was  agreed  to.  Then  I  said,  "What 
weapons  shall  be  used?"  They  replied,  "Colt's 
navy  revolvers,  all  six  chambers  loaded.  The  par- 
ties to  fire  at  the  word,  and  if  neither  falls,  to  ad- 
vance and  continue  firing  until  one  or  the  other  is 
disabled."  This  was  murder  in  the  first  degree 
without  extenuating  circumstances,  but  I  accepted 
instantly.  I  then  asked  them  at  what  distance  the 
parties  should  be  placed  from  each  other,  and  they 
said  eight  paces.  This  tremendously  increased  the 
barbarity  of  the  thing,  because  at  only  eight  paces 
the  length  of  the  Colt's  revolver  removed  all  possi- 
bility of  missing.  But  I  accepted  instantly.  I  then 
asked  who  should  bring  the  pistols.  They  said  that 
as  they  were  the  challenged  party  they  claimed  the 
right  to  bring  them,  and  I  conceded  it. 

I  should  have  said  that  when  Beirne  sent  me  his 
message  he  said  that  he  had  telegraphed  for  Page 
McCarty  who  was  in  Washington  as  the  regular 
correspondent  of  his  paper,  and  that  he  only  de- 
sired me  to  act  until  McCarty  arrived. 

Next  afternoon  I  was  at  Hanover  Junction  be- 


SOME  REMINISCENCES  95 

fore  4  o'clock.  Soon  after  one  of  their  represen- 
tatives arrived,  and  I  asked  him  if  he  had  brought 
the  pistols.  He  said  he  had,  and  instead  of  the 
navy  revolvers  prescribed  he  produced  a  pair  of 
small  pocket  revolvers  that  you  could  not  hit  a  barn 
door  with  at  ten  paces.  "Why,"  said  I,  "how  is 
this  ?  You  prescribed  navy  revolvers  and  you  have 
brought  these  playthings."  They  said  they  had 
been  unable  to  find  a  pair  of  Colt's  navy  revolvers. 
I  then  served  written  notice  on  them  that  we  re- 
fused to  fight  with  the  weapons  they  had  produced, 
first,  because  they  were  not  the  weapons  they  had 
prescribed,  and  second,  because  they  were  not 
dangerous  weapons.  "But,"  said  I,  "Mr.  Beirne 
has  a  pair  of  dangerous  duelling  pistols  here  of 
which  he  offers  you  the  choice."  This  they  de- 
clined, saying  that  the  fight  must  take  place  with 
the  pistols  they  had  brought  or  not  at  all.  By  this 
time  Beirne  and  McCarty  had  arrived,  and  I  re- 
tired as  manager  of  the  affair.  Beirne  was  so  set 
upon  fighting  that  he  agreed,  against  my  remon- 
strance, to  fight  with  the  small  pistols,  and  just  as 
all  parties  were  preparing  for  the  fight  a  party  of 
Richmond  police  drove  up  and  arrested  us  all.  I 
never  knew  how  the  police  got  on  to  the  affair.  I 
know  I  did  not  let  it  out,  and  no  one  who  knows 
Captain  Wise  will  believe  he  did. 

Beirne  was  bitterly  chagrined.     While  we  were 
all  standing  around  the  depot  and  discussing  the 


96  SOME  REMINISCENCES 

matter,  a  train  pulled  up  on  the  Chesapeake  and 
Ohio,  going  west,  and  Beirne  deftly  stepped  on  it 
when  the  officers  were  not  looking  and  sped  off  to 
the  west.  In  a  day  or  two  McCarty  and  I  got  into 
communication  with  him,  and  he  asked  us  to  renew 
his  challenge  and  have  the  duel  come  off  in  the 
Valley  of  Virginia  where  he  was,  and  where  there 
would  be  no  danger  of  interruption.  We  renewed 
the  challenge,  and  this  time  we  got  into  negotia- 
tions with  "J."  and  Col.  Joseph  Minitree, 
a  sure-enough  Confederate  colonel  who  had 
unfortunately  gone  off  with  Mahone.  There  was 
no  bluff  or  humbugging  about  him.  McCarty  and 
I  met  "J."  and  Minitree  at  the  Exchange  Hotel. 
When  everything  else  was  arranged  I  said,  "How 
about  the  weapons?"  "Oh,"  said  "J."  with  a 
great  air,  "we  have  the  right  to  furnish  the 
weapons  and  we  will  provide  the  same  pistols  we 
carried  to  Hanover  Junction." 

Now,  the  whole  country  was  full  of  the  Colt's 
army  revolver,  which  was  the  weapon  that  both 
the  Confederate  and  the  Union  cavalry  used  dur- 
ing the  war,  and  when  the  enemy  prescribed  "Colt's 
navy  revolvers"  at  our  first  meeting  I  understood 
them  to  mean  army  revolvers,  which  went  by  the 
names  indifferently  of  army  revolvers  and  navy 
revolvers.  But  when  they  came  to  Hanover  Junc- 
tion with  little  pistols  they  explained  to  me  that  it 
was  the  technical  navy  revolver  that  they  meant, 


SOME  REMINISCENCES  97 

and  that  they  had  been  unable  to  find  a  pair  of 
technical  navy  revolvers.  That  was  the  first  time 
I  ever  learned  that  there  was  a  difference  between 
the  Colt's  navy  revolver  and  the  Colt's  army  re- 
volver. The  "navy"  is  a  shade  smaller  than  the 
"army"  but  just  as  dangerous  a  weapon. 

So,  feeling  sure  that  Beirne  was  going  to  renew 
the  matter,  as  soon  as  I  got  back  to  Richmond  I 
instituted  quest  for  a  pair  of  technical  navy  revol- 
vers, and  soon  got  a  superb  pair  of  them.  I  no- 
tified "J."  that  I  had  them  and  that  they 
would  be  at  his  service  when  we  renewed  negotia- 
tions. When  we  had  arrived  at  the  point  when 
"J."  said  they  would  produce  the  same  small 
pistols  for  the  fight,  I  said  that  was  perfectly  satis- 
factory to  us,  but  it  must  be  inserted  in  the  cartel 
that  we  had  got  a  pair  of  technical  navy  revolvers 
the  use  of  which  we  tendered  for  the  duel.  "J." 
kicked  violently  against  this,  but  I  stood  firm,  and 
presently  Minitree  spoke  up  and  said,  "Oh,  hell, 
'J.,'  you  have  backed  down,  and  why  not  say 
so!"  Thereupon  it  was  inserted  in  the  cartel  and 
stands  there  to-day  that  Beirne's  friends  had  pro- 
cured a  pair  of  navy  revolvers  and  had  tendered 
the  use  of  them  to  Elam's  friends,  but  that  they 
had  declined  to  use  them  and  insisted  on  fighting 
with  the  small  revolvers. 

The  fight  came  off,  and  at  the  first  fire  Beirne 


98  SOME  REMINISCENCES 

shot  Elam  in  the  thigh  and  the  duel  was  stopped 
at  that  point. 

This  ended  my  experience  with  duels.  After  an 
experience  so  elaborate  as  mine  it  sounds  strange 
to  hear  me  say  I  never  approved  of  duels  but  al- 
ways detested  them  in  my  secret  heart.  The  sys- 
tem was  founded  on  coercion  rather  than  reason, 
and  coercion,  in  whatever  form,  I  have  always  ab- 
horred. But  one  must  understand  society  as  it  ex- 
isted in  Virginia  to  understand  my  participation  in 
them.  It  was  the  general  understanding  that  the 
man  who  did  not  fight  when  he  was  insulted  or  the 
man  who  refused  to  fight  when  challenged  had  a 
smirch  upon  him  from  that  time  on.  Some  ten 
years  before  the  civil  war  Mr.  McGowan  of  South 
Carolina  had  a  duel  with  a  Mr.  Cunningham  in 
which  McGowan  was  desperately  wounded.  Mc- 
Gowan became  a  very  distinguished  general  officer 
in  the  civil  war.  After  the  war  a  friend  of  mine 
met  him  at  the  Greenbrier  White  Sulphur  Springs 
and  asked  him  what  the  duel  between  him  and  Col- 
onel Cunningham  was  about.  "Well,"  said  Gen- 
eral McGowan,  "I  never  did  clearly  understand 
what  it  was  about,  but  you  know  it  was  at  a  time 
when  all  gentlemen  fought."  Although,  as  I  have 
said,  I  utterly  detested  the  whole  business,  yet  I 
should  have  challenged  a  man  that  I  thought  I  was 
called  on  by  public  opinion  to  challenge  and  I 
would  have  accepted  a  challenge  if  it  had  been 


SOME  REMINISCENCES  99 

given  to  me.  Thank  God  the  whole  sentiment  and 
opinion  of  the  people  has  changed,  and  if  a  man 
killed  another  in  a  duel  in  Virginia  now  I  think 
he  would  stand  a  very  fair  showing  for  the  gal- 
lows. 


CHAPTER    III 

THE   STATE   DEBT THE   PRESIDENCY 

About  1830  the  State  of  Virginia  embarked 
upon  the  policy  of  aiding  works  of  internal  im- 
provement. She  sold  her  bonds  bearing  six  per 
cent,  interest  and  subscribed  to  the  stock  of  canals, 
turnpikes,  and  railroads.  She  paid  her  interest  on 
these  bonds  regularly  until  the  civil  war  broke  out, 
but  she  paid  no  interest  on  them  after  that  date. 
At  the  end  of  the  war  her  debt  amounted,  princi- 
pal and  overdue  interest,  to  more  than  $40,000,- 
000. 

There  was  a  bogus  government  of  Virginia  dur- 
ing the  war  at  the  head  of  which  a  man  named 
Pierpont  figured,  which  dodged  about  around  the 
borders  of  Virginia  during  the  war.  Near  the  end 
of  the  war  Mr.  Lincoln  recognized  this  as  the  gov- 
ernment of  Virginia,  and  in  1865  Pierpont  called 
a  legislature  together.  This  body  met  in  Rich- 
mond, and  was  composed  of  as  fine  a  set  of  men  as 
ever  gathered  together  in  the  State.  Virginia  was 
prostrate.  Her  slave  labor,  on  which  her  agricul- 
ture depended,  was  suddenly  freed;  the  armies  had 
destroyed  most  of  her  fencing  and  taken  from  her 
people   almost  all   of  their   stock;    there  was   no 


SOME  REMINISCENCES  101 

money  in  circulation,  and,  in  a  word,  the  poor  old 
State,  ravaged  and  prostrated,  was  in  the  depths 
of  woe  and  despair.  The  State's  bonds  were  owned 
in  the  Northern  States,  but  principally  in  England. 
Many  communities  in  that  condition  would  have 
taken  the  ground  that  as  the  money  was  loaned 
upon  the  faith  of  the  slave  labor,  since  the  slaves 
were  set  free  the  debt  would  no  longer  be  recog- 
nized. But  that  sort  of  action  never  came  from 
Virginia  when  she  was  herself  and  this  legislature 
was  elected  by  the  white  people  of  Virginia  before 
there  was  any  infusion  of  negro  blood  into  her 
body  politic. 

In  December,  1866,  her  Legislature  unani- 
mously passed  the  following  resolution : 

Whereas  the  public  credit  of  the  State  of  Virginia  and 
the  credit  of  our  citizens  has  been  injured  and  is  now 
being  injured  by  the  apprehension  that  this  General  As- 
sembly will  repudiate  the  debt  of  the  State  and  authorize 
the  repudiation  of  the  debts  of  her  citizens;  and  whereas 
we  deem  it  important  to  remove  this  apprehension  from 
the  minds  of  all  persons,  and  so  to  remove  it  at  once; 
and  whereas  if  the  intention  existed  on  the  part  of  the 
General  Assembly  to  pass  any  repudiating  act  the  con- 
stitutions of  both  the  State  and  Federal  Government  posi- 
tively prohibit  the  passage  of  any  such  law;  and  in  order 
to  prevent  any  further  injury  to  our  credit,  therefore 

1.  Resolved,  That  the  General  Assembly  will  pass  no 
such  acts  of  repudiation. 

2.  That  such  legislation  would  be  no  less  destructive 
of  our  future  prosperity  than  of  our  credit,  our  integrity 
and  our  honor. 


102  SOME  REMINISCENCES 

So  spoke  Virginia  in  her  sackcloth  and  ashes, 
the  last  time  that  the  real  Virginia  had  an  oppor- 
tunity to  speak. 

In  1869  the  wretched  reconstruction  acts  of 
Congress  had  overthrown  this  true  government  of 
Virginia  and  had  set  up  a  government  based  almost 
equally  upon  negro  as  well  as  white  suffrage.  The 
white  people  of  Virginia,  however,  controlled  the 
Legislature.  In  1871  the  Legislature  took  up  the 
subject  of  the  public  debt.  When  the  debt  was 
being  created  West  Virginia  was  a  part  of  Vir- 
ginia, being  about  one-third  in  point  of  population 
and  territory,  and  Virginia  had  thought  that  as 
West  Virginia  had  participated  in  the  borrowing, 
she  should  take  her  share  in  the  paying.  The  debt 
was  then  about  $45,000,000  principal  and  interest. 
In  1 87 1  the  Virginia  Legislature  passed  an  act 
which  provided  for  Virginia  assuming  two-thirds 
of  the  debt  and  assigning  one-third  to  West  Vir- 
ginia. The  act  provided  that  if  a  bondholder 
would  deposit  his  bond  with  the  State  of  Virginia 
she  would  give  him  her  new  bond  for  two-thirds 
of  the  principal  and  overdue  interest  (the  interest 
being  capitalized) ,  bearing  six  per  cent,  interest, 
and  a  certificate  stating  that  West  Virginia  owed 
him  the  other  third.  As  an  inducement  to  him  to  do 
this  the  act  provided  that  the  new  bond  should  bear 
tax  receivable  coupons  to  represent  the  interest; 
that  is,  the  coupon  bore  upon  its  face  the  State's 


SOME  REMINISCENCES  103 

contract  that  it  would  be  received  for  its  face  value 
in  payment  of  all  taxes,  debts,  and  dues  to  the 
State,  so  that  the  State  would  be  unable  to  collect 
any  taxes  until  she  had  provided  for  these  coupons. 
The  bondholders  jumped  eagerly  to  the  acceptance 
of  this  offer,  and  in  a  short  time  $20,000,000  of 
the  new  bonds  had  been  issued  bearing  these  cou- 
pons, which  made  a  first  lien  upon  the  State's  reve- 
nues of  $1,200,000  per  annum.  When  the  fund- 
ing had  gone  to  this  extent  the  Legislature  re- 
pealed the  funding  act  and  thus  put  an  end  to  the 
funding  scheme. 

This  presented  William  Mahone,  of  whom  I 
have  given  a  sketch  in  the  preceding  chapter,  with 
his  opportunity.  The  negro  vote  nearly  balanced 
the  white  vote  in  the  State  and  the  negro  always 
votes  solidly  against  what  he  thinks  the  white 
people  favor.  He  was  as  ready  to  vote  for  pay- 
ment of  the  debt  as  for  the  repudiation  of  it,  or  for 
the  repudiation  of  the  debt  as  for  its  payment;  all 
he  wanted  to  know  was,  which  way  the  white 
people  were  going  to  vote,  and  then  he  was  going 
to  vote  the  other  way.  Mahone,  knowing  this,  re- 
solved to  start  a  new  political  party  based  upon  this 
enormous  negro  vote. 

The  people  of  Virginia  were  all  ruined  by  the 
war,  and  even  a  slight  taxation  was  excessively  bur- 
densome to  them.  The  chance  was  most  favorable 
therefore  for  him  to  appeal  to  the  white  people. 


104  SOME  REMINISCENCES 

The  $1,200,000  of  coupons  that  had  to  be  paid  be- 
fore any  money  could  be  raised  for  the  public 
schools  and  for  the  charges  of  government  re- 
quired a  rate  of  taxation  that  was  very  trying, 
therefore  Mahone,  who  had  run  his  railroad  into 
bankruptcy  and  been  turned  out  of  its  presidency, 
now  came  forward  with  a  proposition  to  "read- 
just" the  State  debt,  which  "readjustment"  was 
nothing  but  an  euphemism  for  a  plan  to  repudiate 
a  large  part  of  the  debt.  He  knew  he  could  have 
all  the  negroes  for  his  plan  and  all  the  worthless 
element  of  the  white  people,  and  he  thought  these 
two  would  certainly  control  the  State.  He  got 
all  the  negroes  and  all  the  worthless  whites,  but 
he  got  also  a  considerable  following  of  sturdy  and 
honest  white  men,  who,  resentful  of  the  proposi- 
tion to  pay  when  the  war  had  deprived  them  of  the 
means  of  paying,  refused  to  assent  to  the  payment 
of  the  debt. 

But  the  serious  question  confronted  Mahone, 
"How  are  you  going  to  'readjust'  the  tax  receivable 
coupons?"  No  public  declaration  was  made  of 
the  way  this  difficulty  should  be  met,  but  the  plan 
resolved  on  was  that  the  courts  of  the  State  should 
be  filled  with  "Readjuster"  judges  who  would  pay 
no  attention  to  the  fundamental  law  of  the  land, 
that  is,  the  Constitution  of  the  United  States,  but 
would  make  all  rulings  necessary  for  the  exclusion 
of  the  coupons  from  the  treasury.     This  became  a 


SOME  REMINISCENCES  105 

cardinal  proposition  in  "Readjuster"  policy.  Party 
lines  were  drawn,  and  Mahone  with  his  Falstaft 
party  of  Mouldy,  Shadow,  Wart,  Feeble,  and  Bull 
Calf,  and  the  white  people  of  Virginia  upon  the 
other  side,  went  before  the  people  in  the  fall  of 
1879  f°r  tne  election  of  a  Legislature.  Mahone 
won  and  had  a  considerable  majority  in  both 
branches  of  the  Legislature,  and  this  body  pro- 
ceeded at  once  to  elect  Mahone  to  the  United  States 
Senate. 

I  will  suspend  this  narrative  at  this  point  to  tell 
of  some  events  that  happened  along  here  contem- 
poraneously with  the  progress  of  the  State  debt 
fight. 

When  Mahone,  through  the  negro  vote,  tri- 
umphed in  the  State,  and  placed  the  stigma  of  re- 
pudiation on  Virginia's  escutcheon,  which  had 
theretofore  been  without  a  blemish,  I,  in  common 
with  all  other  true  Virginians,  was  deeply  grieved 
and  mortified.  To  try  and  stem  the  torrent  that 
threatened  to  submerge  all  that  was  decent  and 
manly  in  the  State,  I  determined  to  abandon  my 
profession  and  start  a  daily  newspaper.  I  did  this 
and  established  at  the  beginning  of  1880  a  news- 
paper called  The  Commonwealth.  This  is  to  be 
seen  in  the  libraries  at  Washington  and  at  Rich- 
mond, and  it  testifies  for  itself  how  I  performed 
the  part  that  I  had  set  for  myself.  It  is  enough 
for  me  to  say  here  that  I  made  it  very  hot  for  the 
Readjusters. 


106  SOME  REMINISCENCES 

Along  in  the  spring  of  1880  the  Federal  author- 
ities commenced  prosecutions  against  our  judges 
for  not  putting  negroes  upon  juries.  This  raised  a 
profound  sensation  in  the  South,  and  it  stirred  me 
as  deeply  as  had  repudiation.  I  went  into  that 
fight  with  my  newspaper  with  all  the  vigor  in  my 
nature.  The  State  carried  the  question  before  the 
Supreme  Court  of  the  United  States,  whether  Con- 
gressional enactments  that  dragged  her  judges  be- 
fore Federal  courts  were  consistent  with  the  Con- 
stitution of  the  United  States.  The  Supreme  Court 
upheld  the  acts  of  Congress,  but  Mr.  Justice  Field 
and  Mr.  Justice  Clifford  dissented.  Justice  Field 
in  his  dissenting  opinion  contended  for  a  construc- 
tion of  the  Constitution  that  was  so  necessary  to 
the  poor,  wounded,  bleeding,  downtrodden  South, 
and  that  was  so  fair  and  just  to  all  sections  that  I 
threw  my  hat  into  the  air  and  called  out  to  my  fel- 
low citizens,  "This  is  the  man  for  the  Democratic 
party  to  nominate  this  summer  for  President!" 
From  that  moment  I  put  my  paper  to  work  to  try 
and  secure  Judge  Field's  nomination.  We  had  a 
primary  election  in  Richmond  to  select  delegates  to 
the  National  Democratic  Convention  from  that 
Congressional  district,  which  was  to  meet  at  Cin- 
cinnati in  June.  I  was  elected  to  represent  our 
Congressional  district,  with  my  dear  friend  Judge 
E.  C.  Minor,  judge  of  the  Law  and  Equity  Court 
of  the  city  of  Richmond,  one  of  the  noblest  fellows 


SOME  REMINISCENCES  107 

that  ever  lived,  as  my  associate.  I  had  made  a 
great  impression  with  my  paper  on  the  whole 
South  for  Judge  Field,  and  if  the  Pacific  Coast 
had  been  for  him  he  would  certainly  have  been 
nominated.  But  from  the  time  Judge  Field  had 
been  made  a  Federal  judge  he  had  been  smashing 
Dennis  Kearney  and  his  associates,  and  the  Demo- 
cratic party  of  the  Pacific  Coast  was  pretty  much 
composed  of  that  element.  When  we  got  to  Cin- 
cinnati we  found  the  Field  sentiment  triumphant 
everywhere  except  amongst  the  Pacific  Coast  dele- 
gates. There  we  found  the  most  determined  oppo- 
sition to  Field,  and  this  lost  Field  the  nomination 
and  the  Democratic  party  the  election.  I  quote 
here  a  letter  which  I  wrote  from  Cincinnati  to  my 
paper,  the  local  coloring  of  which  may  still  give  it 
interest: 

Cincinnati,  June  25,   1880. 

I  feel  that  I  have  been  delinquent  to  the  readers  of  the 
Commonwealth  in  not  informing  them  before  this  of  what 
I  have  seen  and  observed  here.  But  the  pack  and  the 
jam,  the  hurry  and  the  bustle,  the  absolute  confusion  that 
has  prevailed  at  all  times  and  all  places  since  I  arrived 
must  be  accepted  by  your  readers  as  my  excuse. 

The  convention  has  been  one  of  the  most  memorable 
ever  held  in  American  politics.  I  should  deserve  to  lose 
the  confidence  of  my  readers  if  I  said  I  think  the  nomi- 
nation the  strongest  that  could  have  been  made. 

I  have  been  warning  the  public  through  the  columns 
of  the  Commonwealth  for  months  against  the  danger  of 
nominating  a  soldier.     I  have  been  urging  upon  it  that 


108  SOME  REMINISCENCES 

the  true  strength  of  our  fight  was  the  fact  that  we  were 
fighting  for  a  government  of  civil  law  as  against  a  govern- 
ment of  force,  and  that  to  make  a  soldier  our  nominee 
was  to  emasculate  in  some  degree  the  strength  of  our 
claim.  The  enthusiasm  which  we  have  witnessed  here 
(and  it  has  been  something  wonderful)  since  the  nomina- 
tion was  made  has  not  changed  my  opinion  upon  this 
point. 

The  place  was  full  of  Democrats,  not  Republicans,  and 
the  ten  or  fifteen  thousand  persons  that  we  heard  clamor- 
ing were  but  a  fraction  of  the  fifty  millions  of  people  in 
the  United  States.  Holding  these  views  I  was  the  last 
member  of  the  Virginia  legislature  to  consent  to  the 
nomination  of  General  Hancock,  and  I  never  did  give  my 
assent  to  it  until  he  had  received  votes  enough  to  nominate 
him.  The  pressure  which  I  had  to  resist  to  this  end  was 
as  much  as  I  was  able  to  endure.  The  call  of  the  roll  of 
States  was  hardly  finished  when  it  was  obvious  that  Gen- 
eral Hancock  would  be  nominated. 

Wisconsin,  which  had  been  divided,  had  moved  to 
change  her  vote  and  make  it  solid  for  Hancock.  This 
was  the  beginning  of  a  general  stampede.  State  after 
State  arose  and  announced  that  her  vote  should  be  changed 
and  made  solid  for  Hancock.  Every  person  in  the  im- 
mense hall  was  on  his  feet ;  cheers  rent  the  air.  The 
Louisana  banner,  bearing  a  superb  portrait  of  the  Gen- 
eral, was  rushed  to  the  stand  and  waved  over  it ;  the  small 
banners  that  marked  the  location  of  the  delegates  from 
each  State  were  snatched  from  their  fastenings  and  carried 
forward  by  enthusiastic  men  and  grouped  around  the 
Louisiana  banner;  the  whole  enormous  mass  of  human 
beings  was  absolutely  mad.  There  was  no  sense,  no  rea- 
son, no  judgment  anywhere.  The  following  incident  is 
amusing  and  characteristic  also.  Coming  around  to  the 
hall  in  the  morning  my  colleague,  dear  old  Ned  Minor, 


SOME  REMINISCENCES  109 

said  to  me,  "Royall,  I  see  a  strong  disposition  to  break  all 
ranks  and  nominate  Hancock.  I  don't  believe  in  doing 
it  and  I  am  not  going  to  be  carried  off  my  feet  into  any 
such  scheme."  "Minor,"  said  I,  "those  are  exactly  my  sen- 
timents, and  I  intend  to  stand  out  firmly  against  it." 
Would  you  believe  it,  that  when  the  rush  set  in  and  the 
enthusiasm  passed  beyond  control,  Minor  was  one  of  the 
first  to  go  over  to  Hancock?  He  was  standing  in  his 
chair  next  to  the  West  Virginia  delegation  and  their 
banner  was  tied  to  Minor's  chair.  An  enthusiastic  West 
Virginian  snatched  the  banner  up  and,  in  doing  so,  upset 
Minor's  chair  and  landed  him  flat  on  his  back  on  the 
floor.  I  looked  down  at  him  and  said,  "Lie  there,  sir,  as  a 
fit  punishment  to  you  for  your  treason." 

The  Virginia  delegation,  equally  carried  away  by  the 
prevalent  enthusiasm,  wanted  to  have  Virginia's  vote  de- 
clared unanimous  for  Hancock.  All  of  them  except  my- 
self had  agreed  to  it.  My  intimate  friends  of  the  delega- 
tion crowded  around  me  and  urged  me  by  every  considera- 
tion to  come  in.  I  refused  to  allow  my  judgment  to  be 
carried  off  its  feet.  At  last  I  was  told  that  he  had  received 
the  necessary  492  votes  and  therefore  was  nominated.  I 
then  told  our  Chairman,  Mr.  Bocock,  that  he  might  an- 
nounce that  Virginia  gave  her  twenty-two  votes  for  him. 
The  confusion  was  so  great  that  Mr.  Bocock  could  not 
get  the  attention  of  the  chair.  He  had  to  go  to  the  desk. 
It  then  occurred  to  me  that  possibly  there  was  a  mistake, 
and  I  went  to  the  clerk's  desk  and  counted  the  vote  and 
found  that  he  had  received  only  470  votes.  I  rushed  to 
Mr.  Bocock  and  got  near  enough  to  exclaim  to  him  just 
as  he  was  about  to  announce  Virginia  as  unanimous  that 
I  refused  to  vote  for  General  Hancock,  and  he  accordingly 
cast  her  last  ballot  twenty-one  for  Hancock  and  one  for 
Field.  Soon  after  that  another  State  changed  and  another, 
and  he  had  the  necessary  number,  whereupon  I  told  Mr. 


no  SOME  REMINISCENCES 

Bocock  that  he  might  announce  Virginia  as  unanimous 
and  it  was  then  done.  The  Louisiana  banner  bearing  the 
General's  portrait  being  brought  to  the  stand  and  waved 
in  the  face  of  the  convention  caused  the  nomination.  A 
frenzy  seized  every  one.  Every  one  thought  it  indicated 
that  he  was  nominated,  whereas  he  lacked  a  hundred  and 
fifty  votes.  Every  one  wanted  then  to  be  on  the  band 
wagon,  and  so  every  one  was  then  in  a  hurry  to  have  his 
vote  changed  to  Hancock.  But  for  this  singular  coinci- 
dence I  do  not  believe  General  Hancock  would  have  been 
nominated.  We  have  nominated  a  brave,  true,  chivalrous 
gentleman,  compared  with  whom,  personally,  Garfield  is 
a  small  potato,  but  I  fear  we  have  not  developed  the  full 
strength  of  our  cause.  However,  we  want  to  see  the 
journal  that  will  do  more  loyal  and  energetic  work  to 
secure  General  Hancock's  election  than  the  Common- 
wealth. I  believe  that  if  the  delegates  from  the  Pacific 
Coast  had  backed  Judge  Field  with  anything  like 
unanimity,  nothing  could  have  prevented  his  nomination. 
It  was  the  unanimous  sentiment  of  the  delegates  from  at 
least  two-thirds  of  the  States  that  he  was  the  man  to 
nominate.  Had  his  Coast  come  forward  and  demanded 
his  nomination  nothing  could  have  averted  it.  But  it 
was  impossible  to  get  anything  like  unanimity  from  them 
in  his  behalf.  I  found  this  matter  to  be  just  as  I  had 
expected. 

From  the  time  of  his  appointment  to  the  Supreme  Court 
bench,  Judge  Field  has  been  holding  his  court  in  Cali- 
fornia and  smashing  Kearneyism  and  Communism  when- 
ever he  could  get  an  opportunity.  That  element  of  the 
Democratic  party  is  his  bitter  enemy,  and  unfortunately 
for  the  Democratic  party,  it  is  largely  composed  there  of 
that  element.  Those  delegates  who  represented  con- 
stituencies in  which  Kearney  is  thought  a  statesman  could 
not  be  induced  to  support  Judge  Field.     Kearney  himself 


SOME  REMINISCENCES  in 

was  at  Cincinnati  working  with  might  and  main  against 
him.  It  was  generally  conceded  by  the  Pacific  Coast  dele- 
gates that  he  could  carry  the  Pacific  Coast  States,  which 
no  other  Democrat  could,  for  the  reason  that  what  he 
lost  in  the  Kearneyites  refusing  to  vote  for  him  he  would 
more  than  make  up  from  the  Republican  ranks.  I  always 
thought  his  nomination  would  have  been  the  wisest  thing 
the  Democratic  party  could  do,  and  I  have  seen  no  cause 
to  change  my  opinion.  The  most  notable  action  taken 
by  the  Convention  was  its  exclusion  of  the  Tammany  dele- 
gates. As  soon  as  it  became  known  that  the  Tammany 
delegates  would  contest  the  seats  of  the  regular  delegation, 
it  was  obvious  that  the  most  serious  fight  that  would  take 
place  in  the  convention  (the  nomination  of  President 
being  left  out  of  the  account)  would  be  before  the  Com- 
mittee on  Credentials.  This  committee  was  to  be  com- 
posed of  one  from  each  State — thirty-eight  in  all — and 
the  Virginia  delegation  conferred  upon  me  the  honor  of 
making  me  their  representative.  We  met  at  8  P.  M.  of 
Wednesday,  the  23d.  Judge  Comstock,  Judge  Amasa  J. 
Parker,  Mr.  Moak  of  Albany,  and  John  Kelley  him- 
self appeared  before  us  to  represent  the  Tammany  side, 
and  Genl.  Faulkner,  chairman  of  the  New  York  delega- 
tion, Mr.  Fellows  a  member  of  it,  and  Ex-Governor  G.  C. 
Walker  with  some  others  represented  the  regular  Demo- 
cracy. 

I  listened  carefully  to  the  discussion  and  got  at  the 
real  state  of  affairs.  The  Tammany  delegates  were  dis- 
tinctly bolters  and  independents,  and  we  could  not  have 
admitted  them  to  seats  in  the  convention  without  giving 
the  sanction  of  the  National  Convention  to  bolts  at  the 
pleasure  of  every  sorehead.  Their  case  rested  upon  these 
grounds.  The  first  was  that  they  represented  77,000 
voters.  We,  whose  duty  it  was  to  inquire  what  persons 
claiming  to   be  accredited   representatives  of   Democratic 


ii2  SOME  REMINISCENCES 

constituencies  were  really  so,  could  pay  no  attention  to  this 
fact  in  the  absence  of  proof  that  their  constituencies  were  a 
part  of  the  regular  Democratic  party  of  New  York,  and 
none  could  be  produced  looking  toward  this.  The  second 
was  a  general  summary  of  the  grievances  of  Mr.  Kelley 
against  Mr.  Tilden  and  of  Mr.  Tilden  against  Mr. 
Kelley.  This  could  afford  us  no  ground  to  say  that  the 
Tammany  delegates  were  regular  Democratic  delegates. 
The  third  was  more  serious.  They  claimed  that  there  was 
no  representative  of  the  New  York  Democracy  at  Cincin- 
nati, for  the  reason  that  the  State  Convention,  that  which 
appointed  the  delegation  claiming  to  be  the  regular  dele- 
gation, was  called  without  any  authority,  and  therefore 
that  Tammany  had  taken  no  part  in  that  convention.  The 
ground  upon  which  they  claimed  that  the  State  Committee 
which  called  the  convention  had  no  authority  to  call  it 
was  that  prior  to  issuing  the  call  it  had  expelled  five  of  its 
members  and  filled  their  places  without  any  authority  for 
so  doing.  The  regular  delegation  made  the  following 
reply  to  this  claim.  They  said  that  when  the  State  Con- 
vention assembled  last  fall  to  nominate  a  candidate  for 
Governor  of  New  York,  John  Kelley  and  his  Tammany 
delegates  came  to  it  claiming  to  be  delegates.  Their  seats 
were  contested  by  a  competing  delegation,  and  after  hear- 
ing the  contest  the  convention  decided  in  favor  of  seating 
Kelley  and  his  delegates  and  excluding  the  others.  That 
they  then  took  part  in  all  the  proceedings  for  organizing 
the  convention,  were  put  on  all  the  committees,  and 
five  of  them  were  put  upon  the  State  Executive  Com- 
mittee which  was  to  have  charge  of  the  party  in  the 
future.  That  when  the  time  came  for  making  nominations 
for  Governor,  one  side  put  up  Governor  Robinson  and  the 
Kelley  side  put  up  General  Slocum.  That  the  calling  of 
the  roll  was  then  proceeded  with,  and  had  gone  so  far 
that  but  three  counties  were  to  vote  when,  it  being  obvious 


SOME  REMINISCENCES  113 

that  Robinson  would  be  nominated,  Kelley  and  his  asso- 
ciates rose  and  left  the  convention,  and  from  that  time  to 
this  they  have  maintained  their  separate  organization. 
That  the  convention  thereupon  passed  a  resolution  au- 
thorizing the  State  Committee  to  declare  the  seats  of  any 
of  its  members  who  adhered  to  the  bolters'  organization 
vacant,  and  that  the  five  Kelleyites  on  the  committee  re- 
fusing to  co-operate  with  the  others,  had  been  declared  by 
them  no  longer  members  of  the  committee,  and  their  places 
had  been  filled,  and  that  the  committee  thus  constituted 
had  called  the  State  Convention  that  appointed  the  regular 
delegates.  This  was  the  entire  case,  and  as  there  then  could 
be  no  doubt  that  the  Tammany  delegates  had  no  sort  of 
right  to  admission,  I  urged  the  committee,  with  all  the 
emphasis  that  I  could  command,  to  exclude  them  and  re- 
tain the  regulars  in  their  seats,  and  it  was  done  by  a  vote 
of  thirty-four  States  against  four.  The  four  dissentients 
made  a  minority  report  recommending  the  seating  of 
twenty  Tammanyites  and  fifty  regulars,  but  the  convention 
sustained  the  report  of  the  committee  by  an  overwhelming 
vote,  and  thus  gave  a  decisive  and  most  valuable  lesson  to 
bolters  all  over  the  United  States. 

I  must  say  that  John  Kelley  made  much  the  most  favor- 
able impression  on  me  of  any  of  those  who  came  before 
our  committee.  I  had  the  impression  that  he  was  a  vulgar, 
prize-fighting  Irishman  of  the  Morrissey  order.  On  the 
contrary,  I  found  him  a  large-brained,  cultivated  man, 
with  the  manners  of  a  gentleman  and  a  self-possession 
without  ostentation  indicative  of  great  reserve  force.  He 
made  an  address  to  the  committee  which,  though  he  could 
make  no  case  for  his  side,  for  the  reason  that  no  case  could 
be  made  for  it,  contained  many  striking  points.  He  placed 
himself  upon  an  elevated  plane  and  looked  down  with 
undisguised  scorn  upon  the  other  side.  He  told  one  of 
their  speakers,   Mr.   Fellows    (their   representative,   with 


ii4  SOME  REMINISCENCES 

whom  he  shook  hands  the  next  day  before  the  convention) 
in  the  most  scornful  and  imperious  style  that  he  should  re- 
quire him  to  confine  himself  to  the  truth.  In  speaking  of 
Mr.  Tilden  he  was  especially  lofty  and  scornful,  saying 
something  to  the  effect  that  if  Mr.  Tilden  would  only 
fight  him  fairly  he  would  never  have  caused  the  breach 
in  the  party,  "but,"  said  he,  "his  methods  of  attack  are 
always  by  some  indirect  and  covered  way,"  and  he  could 
never  tell  when  he  was  to  expect  them.  Whilst  the  case 
was  being  discussed,  Kelley  sat  in  most  self-poised  and 
rather  dignified  style  at  a  window.  General  Faulkner, 
chairman  of  the  regular  delegation,  was  speaking,  and  he 
said  he  would  ask  Kelley  whether  he  would  support  the 
nominee  of  the  convention  whoever  he  might  be.  Kelley 
made  no  response,  whereupon  Faulkner  pressed  his  ques- 
tion, and  the  committee  seeming  to  expect  an  answer, 
Kelley  rose  and  with  great  power  and  scorn  in  his  manner 
said,  "If  a  gentleman  should  ask  me  that  question  I  would 
answer;  but  to  answer  you,  never."  All  the  other  repre- 
sentatives of  Tammany  said  to  the  committee  that  they 
would  support  the  nominee  whoever  he  might  be,  and 
afterward  Kelley  on  his  own  motion  said  that  he  would 
support  the  nominee  whoever  he  might  be,  provided  it  was 
not  Mr.  Tilden,  but  that  he  would  not  support  him. 

I  may  as  well  add  here  all  I  have  to  say  regard- 
ing my  newspaper  venture.  In  the  early  part  of 
the  following  September,  when  I  had  moved  to 
New  York  to  live,  the  National  Democratic  Com- 
mittee met  in  New  York  to  notify  General  Han- 
cock of  his  nomination.  It  determined  to  call  in  a 
body  upon  Mr.  Tilden,  whose  nomination  I  had 
been  most  valiantly  fighting  in  my  newspaper.    My 


SOME  REMINISCENCES  115 

friends,  Senator  John  W.  Daniel  of  Virginia,  and 
Senator  Jonas  of  Louisiana,  insisted  that  I  should 
go  along  with  the  committee  to  call  upon  him.  Be- 
cause of  the  opposition  I  had  made  to  his  nomina- 
tion I  was  very  reluctant  to  do  this,  but  I  finally 
yielded  to  their  importunities. 

When  we  got  around  to  his  house  we  found 
Ex-Governor  Stephenson  of  Kentucky  acting  as 
master  of  ceremonies  and  introducing  each  arrival 
to  Mr.  Tilden.  I  declare  when  I  saw  him  I  was 
never  so  shocked  in  my  life.  He  looked  like  an 
electrified  mummy,  but  just  a  little  electrified. 
He  was  wasted  away  to  a  shadow.  A  great 
tall  silk  hat  came  down  almost  over  his  eyes 
and  ears  and  his  lower  jaw  seemed  about  to  fall 
and  leave  his  mouth  wide  open.  His  face  was  so 
emaciated  it  looked  like  the  face  of  a  corpse  two 
weeks  after  death.  He  had  his  right  arm  across 
his  breast  and  it  was  held  up  by  an  attachment  of 
some  sort.  He  shook  hands  with  the  tips  of  the 
fingers  of  his  left  hand,  and  he  seemed  hardly  able 
to  bring  that  left  hand  up  to  shake  with.  He  was 
a  little  dried-up  semblance  of  the  man  that  had 
once  inhabited  his  clothes.  He  would  shake  hands 
in  a  listless,  lifeless  sort  of  way  with  each  gentle- 
man as  he  was  introduced,  much  as  if  he  did  not 
know  and  did  not  care  what  was  going  on.  Nev- 
ertheless, the  old  fellow  knew  exactly  what  was 
going  on.     When  it  came  to  my  turn  Governor 


n6  SOME  REMINISCENCES 

Stephenson  said,  "Mr.  Royall  of  Virginia,  Mr. 
Tilden."  He  brisked  up  at  once,  and  catching  hold 
of  my  hand  he  pulled  my  ear  down  to  his  mouth 
and  said,  "From  what  part  of  Virginia?"  I  an- 
swered, "From  Richmond."  The  old  fellow  rec- 
ognized his  enemy  at  once,  and  dropped  my  hand 
as  if  it  had  been  a  red-hot  poker,  and  then  he  de- 
liberately turned  his  back  on  me.  Daniel  and 
Jonas  were  standing  by  and  saw  it,  and  I  said  to 
them,  "See  now  what  you  have  got  me  into.  But 
come  on,  and  let's  get  even  with  him  by  drinking 
his  champagne,"  which  we  proceeded  to  do. 

Running  a  daily  newspaper  is  a  very  expensive 
luxury.  By  the  first  of  August,  1880,  I  had  ex- 
hausted all  my  savings,  and  my  paper  not  being 
self-sustaining,  I  had  no  alternative — I  had  to  close 
it.  With  the  record  I  had  made  fighting  Mahone 
and  his  party  and  with  Mahone  and  his  party  in 
full  control  in  Virginia,  I  knew  there  was  but  little 
opportunity  for  me  in  Virginia.  So  I  determined 
to  close  my  paper  and  go  to  New  York  to  practice 
law.  I  opened  a  law  office  in  New  York  in  Sep- 
tember, 1880. 

I  will  now  return  to  Mahone  and  the  debt. 

Though  Mahone  had  elected  a  working  major- 
ity in  the  Legislature  in  the  fall  of  1879,  ne  s^ 
had  a  serious  obstacle  in  the  way.  A  debt  payer, 
Col.  F.  W.  M.  Holliday,  was  Governor  and  he 
would   remain   Governor  until   January    1,    1882. 


SOME  REMINISCENCES  117 

He  could  be  relied  upon  to  veto  any  repudiation 
legislation  that  Mahone's  Legislature  might  pass. 
Accordingly,  it  passed  several  such  acts  and  the 
Governor  vetoed  each  one.  Repudiation  made 
little  progress,  therefore,  prior  to  January  1,  1882. 
But  in  the  fall  of  1881  a  new  Legislature  and  a 
Governor  were  to  be  elected,  and  Mahone's  party 
elected  both  Governor  and  Legislature. 

Before  carrying  the  narrative  further  I  ought  to 
mention  some  of  the  pranks  of  the  Mahone  Legis- 
lature elected  in  1879.  I  have  already  referred  to 
the  fact  that  the  Mahone  program  was  to  fill  the 
judicial  offices  with  men  who  would  kill  the  cou- 
pons without  regard  to  law,  order,  or  reason.  This 
Legislature  gave  a  striking  object-lesson  in  this  line 
of  policy. 

At  that  time  there  was  a  judge  for  each 
county — 100  in  all.  The  Readjusters  put  up  a 
man  named  Claiborne  for  judge  of  Franklin 
County.  This  was  where  Gen.  Jubal  A.  Early  had 
always  lived,  and  he  knew  Claiborne  well.  He 
came  to  Richmond,  and  in  a  written  paper  he  in- 
formed the  Readjuster  caucus  that  Claiborne  was 
a  professional  gambler,  and  not  only  so,  but  a 
cheating  professional  gambler;  that  he  played  the 
game  of  poker  with  a  "lizard,"  which  was  an  in- 
strument with  a  hand,  concealed  under  the  vest, 
with  an  attachment  that  extended  down  to  the  toe, 
and  if  the  player  was  not  satisfied  with  the  cards 


u8  SOME  REMINISCENCES 

dealt  him  he  could  exchange  it  for  those  held  by 
the  "lizard."  He  said  the  "lizard"  was  then  at 
a  blacksmith  shop  for  repairs,  and  he  named  the 
shop  where  the  Readjusters  could  see  it.  Without 
making  any  investigation  whatever,  the  Readjust- 
ers made  Claiborne  judge  of  Franklin  County. 

In  a  short  time  Claiborne  was  indicted  by  his 
own  grand  jury  for  gambling  on  a  race  track.  The 
statute  under  which  he  was  indicted  forbade 
gambling  "at  an  ordinary  race  track,"  or  other 
public  place.  The  word  "ordinary"  has  from  col- 
onial times  been  the  technical  word  for  "inn"  or 
"tavern"  in  Virginia.  Claiborne  got  his  friend 
Mays,  whom  the  Readjusters  had  made  judge  of 
the  nearby  county  of  Botetourt,  to  come  over  and 
try  the  case.  Mays  held  that  the  statute  forbade 
gambling  at  an  "ordinary  race  track,"  and  that  the 
race  track  at  which  Claiborne  had  gambled  was 
an  "extraordinary"  one,  and  therefore  not  within 
the  statute. 

After  the  election  in  the  fall  of  1 88 1  the  Ma- 
hone  party  were  in  complete  possession  of  every 
department  of  the  State  Government,  and  they  pro- 
ceeded to  put  their  theories  into  the  form  of  law. 
They  first  brought  the  debt  down  to  little  more 
than  half,  and  they  then  proceeded  to  pass  acts  de- 
signed to  kill  the  tax  receivable  coupons. 

Most  of  the  owners  of  the  State's  bonds  lived 
in  England,  and  these  proceeded  to  arrange  for  a 


SOME  REMINISCENCES  119 

light  in  the  courts  with  the  State  upon  the  propo- 
sition that  the  coupons  contained  the  State's  con- 
tract that  they  should  be  received  in  payment  of 
her  taxes;  that  the  Constitution  of  the  United 
States  forbade  a  State  to  pass  any  law  impairing 
the  obligations  of  contracts,  and  that  her  legisla- 
tion undertaking  to  prevent  her  collectors  from  re- 
ceiving the  coupons  for  taxes  was  unconstitutional 
and  void.  The  organization  of  creditors  did  me 
the  honor  of  selecting  me  to  conduct  the  fight  for 
them,  and  I  abandoned  all  other  business  to  attend 
to  this.  I  applied  to  a  State  court  for  a  writ  of 
mandamus  to  compel  a  collector  to  receive  coupons 
in  payment  of  taxes,  nothwithstanding  the  State's 
statute  forbidding  him  to  receive  them,  and  the 
State  court  refused  to  grant  the  writ.  I  appealed 
the  case  to  the  Supreme  Court  of  the  United  States, 
which,  to  the  astonishment  and  dismay  of  the 
creditors,  sustained  the  State  court.  This  decision 
produced  a  very  profound  impression  upon  the 
white  people  of  Virginia.  One  of  their  chief  argu- 
ments with  the  Readjusters  was  that  the  Supreme 
Court  would  break  up  whatever  they  did.  Ma- 
hone  and  his  party  had  now  become  avowedly  a 
part  of  the  Republican  party  and  the  white  people 
believed  that  a  Republican  Supreme  Court  had 
made  this  decision  to  help  along  their  ally  Ma- 
hone.  Instantly  all  the  white  people  of  the  State 
resolved  as  one  man  to  abandon  the  creditor  and 


120  SOME  REMINISCENCES 

force  the  readjustment  of  the  debt.  From  that  day 
on  I  had  to  fight  the  entire  population  of  Virginia 
and  when  I  look  back  over  the  contest  I  am  amazed 
at  how  I  was  able  to  sustain  myself  for  eight  years. 
The  court  had  said  in  its  opinion  that  the  State's 
contract  bound  it  to  receive  the  coupon  "when  of- 
fered," and  that  no  State  legislature  could  interfere 
with  the  obligation  of  that  contract.  I  insisted  at 
once  that  had  won  me  the  case;  that  I  had  lost  only 
on  a  question  of  procedure;  that  the  coupon  holder 
was  not  interested  in  making  the  State  take  the 
coupon  into  her  treasury;  that  all  he  was  con- 
cerned with  was  to  offer  it  to  the  State,  and  if  she 
chose  to  lie  out  of  it  it  was  her  affair  and  not  his; 
that  all  he  was  concerned  with  was  that  she  should 
not  molest  him  in  any  way  after  he  had  tendered 
the  coupons,  and  if  any  of  her  officers  did  molest 
him  thereafter  he  could  make  them  pay  him  dam- 
ages. I  at  once  announced  this  as  the  logical  result 
of  the  decision,  and  had  my  announcement  received 
with  derision  and  ridicule  by  the  great  body  of  the 
profession.  Nevertheless,  I  stuck  to  my  guns  and 
took  other  cases  to  the  Supreme  Court,  and  when 
the  decision  came  in  1884  the  Supreme  Court  held 
the  law  to  be  exactly  as  I  had  said  it  was,  in  an 
opinion  delivered  by  Justice  Stanley  Matthews 
(Poindexter  v.  Greenhow,   114  U.  S.  R.). 

I  now  had  matters  in  perfect  shape  for  practical 
operations   except   for   one   thing.      The   Virginia 


SOME  REMINISCENCES  121 

courts  were  filled  with  men  put  there  to  defeat  any 
efforts  the  coupon  holders  might  make.  Although 
I  had  the  law  theoretically  what  I  wanted  it,  how 
could  I  expect  any  practical  relief  from  a  Claiborne 
or  a  Mays?  I  had  to  get  an  impartial  court  or  I 
could  never  expect  anything  material. 

The  United  States  courts  were  impartial,  and  if 
I  could  only  have  my  litigation  tried  there  I  had  a 
show.  But  from  time  immemorial  it  had  been 
the  understanding  of  every  one  that  the  United 
States  courts  could  try  only  cases  when  one  party 
was  a  citizen  of  one  State  and  the  other  party  was 
a  citizen  of  another  State,  and  both  parties  to  my 
litigation  were  citizens  of  Virginia.  I  took  the 
position  that  when  a  question  arising  under  the 
Constitution  of  the  United  States  was  involved  in 
a  case  a  United  States  court  could  try  it  if  both 
parties  were  citizens  of  Virginia.  I  took  a  case  in- 
volving this  point  to  the  Supreme  Court  of  the 
United  States  and  it  said  I  was  right.  I  now  had 
a  good  cause  of  action  and  an  impartial  court  in 
which  to  try  it.  I  got  people  all  over  the  State  to 
stand  on  their  tender  of  coupons,  the  collectors 
levied,  I  sued  the  collectors  for  damages  in  the 
United  States  court,  and  in  every  case  I  recovered 
damages.  Matters  were  all  running  my  way  in  a 
flood  tide,  and  it  looked  as  if  I  was  going  to  force 
the  State  to  pay  her  coupons  dollar  for  dollar. 

I  will  mention  one  incident  that  will  illustrate 


122  SOME  REMINISCENCES 

how  completely  the  tide  was  running  my  way.  In 
her  desperation  the  State  was  passing  into  a  statute 
every  scheme  any  visionary  would  suggest.  So  she 
got  to  indicting  my  clients  for  using  coupons.  Now 
men  who  will  charge  a  battery  can  be  intimidated 
by  a  writ.  Men  will  not  stand  prosecutions.  I 
saw  at  once  the  State  would  beat  me  if  I  could  not 
stop  these  prosecutions,  but  how  to  stop  them  was 
the  question.  Suddenly  it  occurred  to  me  to  sue 
the  grand  jury  in  the  United  States  court  for  dam- 
ages for  indicting  my  clients  under  laws  that  they 
knew  to  be  repugnant  to  the  Constitution  of  the 
United  States.  The  grand  jury  was  composed  of 
merchants,  and  if  there  is  anything  on  earth  a  mer- 
chant detests  it  is  to  have  an  announcement  made 
that  he  has  been  sued.  Accordingly,  I  sued  the 
grand  jury  in  the  United  States  court  for  damages, 
and  I  made  public  proclamation  that  I  would  sue 
any  other  grand  jury  that  indicted  my  clients.  This 
brought  the  indictment  of  my  clients  to  a  peremp- 
tory ending.  At  the  next  term  of  the  Hustings 
Court  of  the  city  of  Richmond  the  grand  jury  made 
a  written  report  to  the  court  that  they  had  abund- 
ant evidence  on  which  to  indict  Mr.  Royall  and  his 
clients,  but  that  he  had  sued  the  preceding  grand 
jury  and  had  announced  that  he  would  sue  any 
other  grand  jury  that  indicted  his  clients,  and  that 
they  therefore  declined  to  indict  them.  This  paper 
can  be  seen  now  in  the  records  of  the  Hustings 


SOME  REMINISCENCES  123 

Court  of  Richmond.  Thereupon  I  was  indicted 
for  intimidating  the  grand  jury.  I  was  tried,  con- 
victed, and  sentenced  to  pay  a  fine  of  $150  and  be 
confined  in  jail  for  six  months,  and  I  was  taken  to 
jail.  I  at  once  applied  to  the  United  States  court 
for  a  writ  of  habeas  corpus  and  on  the  hearing  was 
discharged. 

I  had  the  State  by  the  throat,  and  it  was  now 
only  a  question  of  months  when  she  would  be  com- 
pelled to  submit.  But  now  happened  one  of  the 
most  unexpected  things  that  could  possibly  happen. 
The  Supreme  Court  of  the  United  States,  seeing 
the  use  I  was  making  of  the  law  it  had  laid  down, 
released  the  State  from  my  grip. 

Somebody,  with  an  ingenuity  of  the  type  that 
is  credited  to  the  Devil, — there  are  a  number  of 
claimants  for  the  honor, — got  up  this  scheme :  the 
officers  should  report  the  man  who  tendered  cou- 
pons for  his  taxes  and  the  Attorney-General  in 
some  cases  and  the  Commonwealth's  Attorneys  of 
the  counties  and  cities  in  the  others  should  sue  the 
person  in  the  State  courts  for  his  taxes  in  the  name 
of  the  State.  The  coupons  were  engraved  simply 
— not  signed — and  their  genuineness  could  be 
proved  by  expert  evidence  only.  But  the  State 
provided  that  expert  evidence  should  not  be  used 
on  these  trials.  The  coupon  holder  was  sued  for 
his  tax  therefore  in  the  State  Court,  the  State 
denied  the  genuineness  of  his  coupon,  and  the  cou- 


i24  SOME  REMINISCENCES 

pon  holder  was  denied  a  means  of  proving  his 
coupon  to  be  genuine.  Judgment  would,  of 
course,  go  against  the  coupon  holder  with  heavy 
costs.  When  execution  was  issued  on  this  judg- 
ment, if  the  coupon  holder  tendered  coupons  in 
payment  of  the  judgment  the  officer  was  not  to 
levy  on  his  property  and  sell  it.  He  was  to  report 
the  fact  to  the  Commonwealth's  Attorney,  who 
was  to  sue  the  coupon  holder  again,  get  another 
judgment,  and  add  a  second  set  of  heavy  costs. 
And  this  was  to  go  on  until  costs  were  piled  moun- 
tain high  and  the  coupon  holder  would  be  broken 
by  the  costs  even  in  depreciated  coupons. 

When  this  act  was  passed  I  brought  a  suit  in 
equity  before  United  States  Circuit  Judge  H.  L. 
Bond  praying  for  an  injunction  to  restrain  the  At- 
torney-General and  the  Commonwealth's  Attorn- 
eys from  bringing  the  suits  provided  for  in  it,  upon 
the  ground  that  the  law  impaired  the  obligation 
of  the  coupon  contract  and  was  unconstitutional 
and  void.  Judge  Bond  granted  the  injunction. 
Thereupon  the  Attorney-General  of  the  State  and 
two  of  the  Commonwealth's  Attorneys  violated  the 
injunction  by  bringing  the  suits  ordered.  I  had  all 
three  of  them  up  before  Judge  Bond  on  a  rule  to 
show  cause  why  they  should  not  be  punished  for 
contempt  of  court,  and  after  hearing  the  case  Judge 
Bond  held  them  guilty  of  contempt  and  sent  all 
three  of  them  to  the  Richmond  city  jail. 


SOME  REMINISCENCES  125 

The  eleventh  amendment  to  the  Constitution  of 
the  United  States  provides  that  the  judicial  power 
of  the  United  States  shall  not  extend  to  a  case  in 
which  a  State  is  sued.  Way  back  in  the  time  of  the 
United  States  Bank  the  State  of  Ohio  had  passed  a 
law  imposing  taxes  upon  that  bank  intended  to 
drive  it  out  of  Ohio.  The  bank  sued  her  officers 
for  an  injunction  to  restrain  them  from  putting  this 
law  into  effect,  and  the  Circuit  Court  of  the  United 
States  enjoined  them  and  put  the  Treasurer  of  the 
State  of  Ohio  in  jail  for  violating  the  injunction. 
This  fact  does  not  appear  in  Mr.  Wheaton's  re- 
port of  the  case  (Osborn  v.  The  Bank,  9  Wheat.) , 
but  the  original  record  shows  it.  The  case  was 
appealed  to  the  Supreme  Court  of  the  United 
States  upon  the  ground  that  the  suit  was  in  sub- 
stance and  effect  a  suit  against  the  State  of  Ohio 
and  barred  therefore  by  the  eleventh  amendment. 
The  opinion  of  the  court  was  delivered  by  Chief 
Justice  Marshall  and  the  decision  of  the  lower 
court  was  affirmed.  The  court  laid  this  down  as 
the  test  in  all  cases  where  it  was  claimed  that  a 
State  was  sued.  If  the  State  was  named  upon  the 
record  as  a  party  defendant,  then  the  suit  was 
against  the  State.  But  if  the  State  was  not  named 
as  a  party  defendant  on  the  record  then  the  suit 
could  never  be  said  to  be  one  against  the  State. 
That  was  understood  to  be  the  law  from  that  time 
forward,  and  a  few  years  after  the  war  the  ques- 


126  SOME  REMINISCENCES 

tion  was  again  brought  up  before  the  Supreme 
Court  in  Davis  v.  Gray,  16  Wallace,  and  the  court 
again  declared  that  the  rule  laid  down  by  Chief 
Justice  Marshall  in  Osborn  v.  The  Bank  was  the 
true  rule.  Backed  by  that  rule  I  felt  perfectly  safe 
and  had  not  the  slightest  fear  that  the  State's  offi- 
cers would  be  able  to  escape  the  shackles  with 
which  I  had  bound  them. 

The  Attorney-General  and  the  two  Common- 
wealth's Attorneys  applied  to  the  Supreme  Court 
of  the  United  States  for  a  writ  of  habeas  corpus 
to  discharge  them  from  their  imprisonment,  upon 
the  ground  that  in  putting  the  State's  law,  which 
was  conceded  on  all  hands  to  be  repugnant  to  the 
Constitution  of  the  United  States,  into  effect  they 
were  in  substance  and  fact  the  State,  and  that  the 
eleventh  amendment  forbade  the  United  States 
Court  to  enjoin  them  from  putting  that  law  into 
effect.  It  was  the  cases  of  Osborn  v.  The  Bank  and 
Davis  v.  Gray  right  over  again.  The  officers  above 
were  named  as  defendants  and  the  State  was  not 
mentioned,  so  I  had  no  fear  whatever  for  the  re- 
sult. But  to  my  amazement,  when  the  decision 
came  the  court,  in  an  opinion  delivered  by  the  same 
Justice  Stanley  Matthews  who  had  delivered  the 
opinion  of  the  court  holding  her  bound  on  her  con- 
tract, held  that  the  suit  was  one  against  the  State 
of  Virginia  and  it  discharged  the  officers  from  im- 
prisonment  (Ex  parte  Ayres,   123  U.  S.  R.). 


SOME  REMINISCENCES  127 

I  once  heard  the  following  anecdote :  A  man 
tracked  a  grizzly  bear  over  mountain  and  dale  for 
a  long  way,  and  suddenly  gave  up  the  pursuit  and 
returned.  When  he  was  asked  why  he  had  aban- 
doned the  chase  he  said,  "The  trail  was  getting  too 
d — d  fresh."  When  it  was  a  mere  matter  of  de- 
claring theoretical  law  the  Supreme  Court  had  no 
difficulty  about  giving  the  coupon  holders  all  of  it 
that  they  wanted.  But  when  Judge  Bond  took 
them  at  their  word  and  proceeded  to  put  this  theo- 
retical law  into  practical  effect  that  was  another 
story. 

I  want  to  make  it  plain  that  the  decision  of  the 
court  in  this  case  of  Ayres  was  in  direct  conflict 
with  what  had  been  held  by  the  Supreme  Court 
from  the  foundation  of  the  government,  in  case 
after  case,  up  to  the  Ayres  decision.  Osborn  v. 
The  Bank,  decided  in  1824,  was  the  first  case,  and 
I  have  already  stated  the  main  facts  in  that 
case.  The  essential  facts  are  that  the  old  Bank  of 
the  United  States  had  a  number  of  officers  in  the 
State  of  Ohio  and  that  the  people  of  that  State 
were  determined  to  drive  it  out  of  Ohio  if  they 
could.  To  that  end  the  Legislature  of  Ohio 
passed  an  act  imposing  a  tax  of  $50,000  on  each 
office  that  the  Bank  of  the  United  States  had  in 
Ohio,  and  it  directed  Osborn,  the  auditor  of  the 
State,  to  collect  it  by  warrant  in  the  State's 
name.     The  law  was  repugnant  to  the  Constitu- 


128  SOME  REMINISCENCES 

tion  of  the  United  States,  as  the  Supreme  Court 
held,  because  a  State  could  not  tax  the  Bank  of 
the  United  States. 

Osborn,  the  auditor,  was  about  to  collect  this 
tax  when  the  Bank  applied  to  the  United  States 
Circuit  Court  for  an  injunction  to  prevent  his  so 
doing,  upon  the  ground  that  the  law  imposing  the 
tax  and  directing  the  auditor  to  collect  it  was  re- 
pugnant to  the  Constitution  of  the  United  States. 
The  Circuit  Court  granted  the  injunction,  and  Os- 
born, the  auditor,  appealed  to  the  Supreme  Court 
of  the  United  States,  where  it  was  insisted  for  Os- 
born that  he  was  in  substance  and  effect  the  State 
of  Ohio.  The  opinion  of  the  Supreme  Court  was 
delivered  by  Chief  Justice  Marshall,  and  he  held, 
as  above  stated,  that  a  suit  could  never  be  held  to 
be  one  against  a  State  unless  she  was  named  upon 
the  record,  and  the  decision  of  the  lower  court 
was  consequently  sustained.  In  delivering  the 
court's  opinion  Chief  Justice  Marshall  said  (9 
Wheat.,  857)  : 

It  may,  we  think,  be  laid  down  as  a  rule  which  admits 
of  no  exception  that,  in  all  cases  where  jurisdiction  depends 
upon  the  party,  it  is  the  party  named  on  the  record.  Con- 
sequently the  eleventh  amendment,  which  restrains  the 
jurisdiction  granted  by  the  constitution  over  suits  against 
States,  is  of  necessity  limited  to  those  suits  in  which  a  State 
is  a  party  on  the  record. 

After  the  ending  of  the  civil  war  the  same  ques- 


SOME  REMINISCENCES  129 

tion  came  before  the  Supreme  Court  in  the  case 
of  Davis  v.  Gray,  16  Wall.,  203,  and  it  received 
the  same  answer.  Texas  had  made  large  land 
grants  to  a  railroad  before  the  war,  and  after  the 
war  the  carpetbagger  government  of  Texas  at- 
tempted to  confiscate  these  lands,  and  ordered  the 
Governor  of  the  State  to  make  deeds  to  them. 
The  railroad  filed  a  bill  in  the  United  States  Court 
praying  that  the  Governor  might  be  enjoined  from 
executing  this  unconstitutional  law.  The  Gover- 
nor set  up  the  same  defence,  viz :  that  he  was  the 
State  of  Texas  and  that  the  eleventh  amendment 
protected  him  from  suit.  The  Circuit  Court  en- 
joined the  Governor,  and,  on  appeal  to  the  Su- 
preme Court,  it  affirmed  the  Circuit  Court's 
decree.  I  quote  the  following  from  the  opinion  of 
the  court   (page  220)   as  follows: 

A  few  remarks  will  be  sufficient  to  dispose  of  the  juris- 
dictional objections  of  the  appellant. 

In  Osborn  v.  The  Bank  of  the  United  States  these 
things  amongst  others  were  decided : 

"(1)  A  Circuit  Court  of  the  United  States  in  a  proper 
case  in  equity  may  enjoin  a  State  officer  from  executing  a 
State  law  in  conflict  with  the  constitution  or  a  statute  of 
the  United  States,  when  such  execution  will  violate  the 
rights  of  the  complainant; 

"(2)  Where  the  State  is  concerned  the  State  should  be 
made  a  party  if  it  could  be  done.  That  it  cannot  be  done  is 
a  sufficient  reason  for  the  omission  to  do  it,  and  the  court 
may  proceed  to  decide  against  the  officers  of  the  State  in  all 
respects  as  if  the  State  was  a  party  to  the  record ; 


i3o  SOME  REMINISCENCES 

"(3)  In  deciding  who  are  parties  to  the  suit  the  court 
will  not  look  beyond  the  record.  Making  a  State  officer  a 
party  does  not  make  the  State  a  party,  although  her  law 
may  have  prompted  his  action,  and  the  State  may  stand 
behind  him  as  the  real  party  in  interest.  A  State  can  be 
made  a  party  only  by  shaping  the  bill  expressly  with  that 
view,  as  when  individuals  or  corporations  are  intended  to 
be  put  in  that  relation  to  the  case." 

In  the  case  of  Poindexter  v.  Greenhow,  114  U. 
S.  R.,  270,  Poindexter  had  tendered  the  State  of 
Virginia's  coupons  in  payment  of  her  taxes.  The 
treasurer,  obeying  the  State  law  that  required  him 
to  refuse  the  coupons,  levied  and  seized  Poindex- 
ter's  desk  in  obedience  to  the  State  law  to  sell  it 
and  thereby  make  the  taxes.  Poindexter  brought 
an  action  of  detinue  against  the  State's  treasurer  to 
recover  his  desk.  The  treasurer  said  he  was  the 
State  and  protected  from  suit  by  the  eleventh 
amendment.  The  Supreme  Court,  following  Os- 
born  v.  The  Bank,  said  that  as  the  State  was  not 
named  on  the  record,  the  suit  was  not  against  the 
State,  and  it  took  the  desk  from  the  treasurer  and 
restored  it  to  Poindexter. 

In  the  case  of  Allen  v.  B.  &  O.  R.  R.  Co.,  114 
U.  S.  R.,  311,  the  railroad  had  tendered  the  State's 
coupons  in  payment  of  its  taxes  due  to  the  State 
of  Virginia.  The  State's  officers  were  about  to  col- 
lect the  taxes  in  money  by  distress  warrants  in  the 
name  of  the  State,  when  the  railroad  applied  to  the 
Circuit  Court  of  the  United  States  to  enjoin  them. 


SOME  REMINISCENCES  131 

They  also  said  that  they  were  the  State  and  pro- 
tected from  suit  by  the  eleventh  amendment,  but 
the  court,  following  Osborn  v.  The  Bank,  decided 
that  as  the  State  was  not  named  on  the  record,  she 
could  not  be  considered  a  party  to  the  suit.  The 
opinions  in  both  of  the  last-mentioned  cases  were 
delivered  by  Mr.  Justice  Stanley  Matthews,  and  in 
the  last  one,  Allen  v.  B.  &  O.  R.  R.,  he  says  (p. 
3H)  : 

"The  circumstances  of  this  case  bring  it,  so  far  as  that 
remedy  is  in  question,  fully  within  the  principle  firmly 
established  in  this  court  by  the  decision  in  Osborn  v.  The 
Bank  of  the  United  States,  9  Wheat.,  739." 

It  may  be  possible  to  distinguish  Ex  parte  Ayres 
from  these  cases,  but  to  do  it  one  must  have  the 
acuteness  of  the  man  in  Hudibras. 

"He  could  distinguish  and  divide 
A  hair  'twixt  south  and  southwest  side." 

Nothing  less  will  do  the  job.  In  Ex  parte  Ayres 
Mr.  Justice  Stanley  Matthews  attempted  to  draw  a 
distinction  between  them,  but  to  my  mind  he  made 
a  most  lamentable  failure.  He  attempted  to 
found  the  distinction  upon  two  grounds.  The  first 
is  that  when  the  officer  sued  has  no  personal  in- 
terest in  the  suit,  but  the  State  is  the  only  party 
having  a  direct  interest,  she  is  to  be  considered  the 
real  party  sued,  although  she  is  not  named  on  the 
record.     But  all  that  had  been  considered  by  Chief 


132  SOME  REMINISCENCES 

Justice  Marshall  in  Osborn  v.  The  Bank,  and  by 
the  Supreme  Court  in  all  of  the  cases  following  the 
Osborn  case,  and,  as  stated  by  Justice  Matthews 
himself,  in  Allen  v.  B.  &  O.  R.  R.,  the  principle 
had  become  firmly  established  in  the  Supreme 
Court  that  the  State  was  never  to  be  considered  a 
party  to  the  cause  unless  she  was  named  as  a  party 
on  the  record. 

In  what  respect  did  Osborn  have  more  interest 
in  the  cause  than  Ayres.  Neither  had  any  interest 
in  it.  In  each  case  the  officer  was  simply  executing 
an  order  that  his  State  had  given  him  by  a  law  that 
was  repugnant  to  the  Constitution  of  the  United 
States. 

In  what  respect  was  the  State  of  Virginia  more 
interested  in  having  Ayres  bring  the  suit  she  had 
ordered  him  to  bring  than  Ohio  had  in  having 
Osborn  bring  the  suit  she  had  ordered  him  to 
bring?  I  can  see  no  difference  in  interest,  and  the 
same  may  be  said  of  each  of  the  other  cases  men- 
tioned. In  none  of  them  did  the  officers  have  any 
personal  interest.  In  all  of  them  the  State  was  the 
only  party  having  a  direct  interest.  Yet  in  all  of 
them  the  court  had  adhered  to  the  rule  laid  down 
in  Osborn  v.  The  Bank  that  the  State  was  never 
to  be  considered  a  party  unless  she  was  named  as 
such  in  the  record.  Justice  Matthews's  second 
ground  for  distinguishing  Ex  parte  Ayres  from  Os- 
born v.  The  Bank  and  the  other  cases  mentioned 


SOME  REMINISCENCES  133 

was  that  in  Ex  parte  Ayres  the  coupon  holder  was 
seeking  to  force  the  State  to  comply  with  her  con- 
tract and  to  redeem  the  coupon.  How  he  could 
bring  his  mind  to  this  conclusion  is  simply  incon- 
ceivable to  me.  The  case  was  simply  this :  The 
State  ordered  her  Attorney-General,  by  an  act  of 
her  Legislature  repugnant  to  the  Constitution  of 
the  United  States,  to  sue  a  taxpayer  who  had 
tendered  her  coupons  in  payment  of  his  tax,  and 
who  stood  upon  that  tender,  refusing  to  pay  any- 
thing else.  The  coupon  holder  asked  the  United 
States  Court  to  forbid  the  Attorney-General  to 
bring  that  suit  on  the  ground  that  the  act  requir- 
ing him  to  bring  it  was  unconstitutional.  He  did 
not  ask  the  court  to  go  further  and  make  the  State 
accept  the  coupon  in  payment  of  the  tax.  He 
stopped  with  asking  the  court  to  keep  the  State's 
officer  off  of  him.  How  can  that  act  be  construed 
into  an  attempt  to  make  the  State  pay  the  coupon? 
It  is  solely  a  self-defensive  measure.  It  asks  noth- 
ing from  the  State.  It  asks  simply  and  solely  that 
he  be  protected  in  that  isolation  to  which  he  is  en- 
titled and  that  this  officer  be  kept  from  molesting 
him  in  a  matter  as  to  which  he  is  entitled  to  quiet 
and  rest.  How  that  can  be  said  to  be  an  attempt 
to  force  the  State  to  pay  her  coupon  is  more  than 
I  can  understand.  The  tax  payer's  position  was 
that  he  had  done  his  whole  duty  and  was  entitled 
to   repose.     It  was  nothing  to   him  whether  the 


i34  SOME  REMINISCENCES 

State  got  her  taxes  or  whether  she  did  not.  But 
she  had  no  right  to  molest  him.  The  gist  of  Jus- 
tice Matthews's  opinion  on  this  point  is  contained 
in  the  following  extract  (page  502).     He  says: 

A  bill  in  equity  for  the  specific  performance  of  the  con- 
tract against  the  State  by  name,  it  is  admitted  could  not  be 
brought.  *  *  *  The  converse  of  that  proposition 
must  be  equally  true  because  it  is  contained  in  it ;  that  is,  a 
bill,  the  object  of  which  is  by  injunction,  indirectly  to  com- 
pel the  specific  performance  of  the  contract  by  forbidding 
those  acts  and  doings  which  constitute  breaches  of  the  con- 
tract, must  also  necessarily  be  a  suit  against  the  State.  In 
such  a  case,  though  the  State  be  not  nominally  a  party  on 
the  record,  if  the  defendants  are  its  officers  and  agents 
through  whom  alone  it  can  act  in  doing  and  refusing  to 
do  the  things  which  constitute  a  breach  of  its  contract,  the 
suit  is  still,  in  substance,  though  not  in  form,  a  suit  against 
the  State. 

When  exactly  those  considerations  were  urged 
upon  Chief  Justice  Marshall  in  Osborn  v.  The 
Bank,  he  came  to  exactly  the  opposite  conclusion. 
I  quote  from  his  opinion  (page  846)  as  follows: 

The  bill  is  brought,  it  is  said,  for  the  purpose  of  pro- 
tecting the  bank  in  the  exercise  of  a  franchise  granted  by 
a  law  of  the  United  States,  which  franchise  the  State  of 
Ohio  asserts  a  right  to  invade  and  is  about  to  invade.  It 
prays  the  aid  of  the  court  to  restrain  the  officers  of  the 
State  from  executing  the  law.  It  is,  then,  a  controversy 
between  the  bank  and  the  State  of  Ohio.  The  interest  of 
the  State  is  direct  and  immediate,  not  consequential.  The 
process  of  the  court,  though  not  directed  against  the  State 


SOME  REMINISCENCES  135 

by  name,  acts  directly  upon  it,  by  restraining  its  officers. 
The  process  therefore  is  substantially,  though  not  in  form, 
against  the  State,  and  the  court  ought  not  to  proceed  with- 
out making  the  State  a  party.  If  this  cannot  be  done,  the 
court  cannot  take  jurisdiction. 

The  full  pressure  of  this  argument  is  felt,  and  the  diffi- 
culties it  presents  are  acknowledged.  The  direct  interest 
of  the  State  in  the  suit,  as  brought,  is  admitted ;  and  had 
it  been  in  the  power  of  the  bank  to  make  it  a  party,  per- 
haps no  decree  ought  to  have  been  pronounced  in  the 
cause,  until  the  State  was  before  the  court.  But  this  is 
not  in  the  power  of  the  bank.  The  eleventh  amendment 
of  the  Constitution  has  exempted  a  State  from  the  suits  of 
citizens  of  other  States  or  aliens;  and  the  very  difficult 
question  is  to  be  decided,  whether  in  such  a  case  the  court 
may  act  upon  the  agents  employed  by  the  State. 

He  then  proceeded  to  announce  the  opinion  of 
the  court  that  it  might  act  upon  them  notwithstand- 
ing that  the  State  was  the  real  party  to  be  affected, 
and  all  the  other  cases  cited  above  did  the  same 
thing. 

What  now  is  to  be  said  of  Justice  Matthews's 
opinion  that  forbidding  the  officers  of  the  State  to 
do  things  that  would  be  breaches  of  the  State's  con- 
tract is  compelling  the  State  to  perform  her  con- 
tract? It  is  absolutely  impossible  to  reconcile  this 
with  sound  reason.  When  Justice  Matthews 
forbade  the  State's  auditor  in  Allen  v.  B.  &  O. 
R.  R.  to  seize  the  railroad  property  for  the 
taxes  the  railroad  owed  and  had  tendered 
coupons  for,  he  was  forbidding  him  to  violate  the 


136  SOME  REMINISCENCES 

State's  contract,  but  he  was  not  requiring  the  State 
to  perform  her  contract.  He  was  leaving  the  par- 
ties just  where  he  found  them.  He  was  requiring 
the  State  to  do  nothing.  He  was  leaving  it  op- 
tional with  her  whether  she  would  perform  the 
contract  embodied  in  the  coupon  or  whether  she 
would  not.  To  say  that  that  required  her  to  per- 
form that  contract  is,  it  seems  to  me,  to  confound 
the  most  obvious  distinction  between  things,  and 
is  equivalent  to  saying  that  twice  two  is  five  instead 
of  four.  To  forbid  Allen  to  seize  the  railroad 
property  after  the  tender  of  coupons  was  not  to 
require  the  State  to  perform  her  contract  to  re- 
ceive the  coupons  in  payment  of  taxes,  and,  when 
that  statement  is  made,  all  has  been  said  that  the 
case  admits  of  being  said. 

Justice  Matthews's  proposition  ignores  and  dis- 
regards the  consideration  upon  which  the  eleventh 
amendment  rests.  That  amendment  is  founded 
upon  the  proposition  that  it  is  beneath  the  dignity 
of  a  sovereign  State  of  this  Union  to  be  sued  in  a 
United  States  Court.  That  proposition  may  be 
one  of  little  importance,  but  when  the  eleventh 
amendment  was  adopted  the  State  thought  it  of 
sufficient  importance  to  require  that  it  be  made  a 
part  of  the  Constitution  of  the  United  States. 
Now  when  Justice  Matthews  says  that  forbidding 
an  officer  to  trespass  upon  me  after  I  have  tendered 
coupons  is  the  same  thing  as  suing  the  State  and 


SOME  REMINISCENCES  137 

forcing  her  to  give  me  a  receipt  for  my  taxes  and 
to  receive  my  coupons  into  her  treasury,  he  is  abso- 
lutely ignoring  the  State's  cherished  exemption 
from  suit.  He  is  saying  that  it  is  a  mere  trifle  and 
amounts  to  nothing  and  is  not  to  be  considered  as 
an  element  in  the  case.  But  the  States  consider  it 
a  very  great  element  in  the  case,  and  they  will 
never  admit  that  forbidding  an  officer  to  collect 
taxes  by  an  unlawful  proceeding  is  the  same  thing 
as  suing  them  on  their  contracts  and  forcing  them 
to  perform  those  contracts. 

These  considerations  are  so  obvious  that,  for 
my  part,  I  have  always  believed  that  the  Supreme 
Court  was  Homerized  in  making  the  decision  it 
made  in  Ex  parte  Ayres. 

All  through  its  history  the  Supreme  Court  had 
been  in  the  habit  of  declaring  the  law  and  seeing 
all  the  people  of  the  United  States  at  once 
adopt  its  declaration  and  base  all  further  action 
upon  it.  It  had  never  conceived  it  to  be 
possible  that  anybody  would  refuse  to  acquiesce 
in  its  decision  when  once  made.  But  the  Supreme 
Court  had  never  before  tackled  the  people  of  Vir- 
ginia. They  are  the  most  obstinate,  bull-headed 
people  that  ever  lived  when  they  think  any  one  is 
seeking  to  invade  their  rights.  You  may  some- 
times wheedle  and  cajole  them,  but  you  are  always 
going  to  have  a  lively  time  when  you  attempt  to 
drive  them.     It  is  like  the  question  as  to  the  best 


138  SOME  REMINISCENCES 

way  to  lead  a  calf.  If  you  put  a  rope  around  his 
neck  and  try  to  lead  him  he  pulls  back  and  drags 
you  about  in  all  sorts  of  ways.  But  if  you  tie  the 
rope  around  his  hind  leg  and  get  behind  him,  you 
can  lead  him  along  in  a  very  satisfactory  manner. 
No  doubt  the  Supreme  Court  was  perfectly  amazed 
when  it  found  out  the  controversy  it  had  got  on  its 
hands  in  this  coupon  matter,  with  its  dockets  filled 
up  each  term  with  the  coupon  cases  I  carried  there. 
In  one  of  these  cases  Mr.  Justice  Bradley,  in  de- 
livering the  opinion  of  the  Court,  said  (135  U. 
S.  R.,  721)  : 

If  the  influx  of  coupons  should  be  so  uncertain  that 
no  safe  calculation  could  be  made  on  the  subject,  an 
arrangement  could  probably  be  made  with  the  coupon 
holders  for  limiting  the  proportion  of  tax  which  would  be 
received  in  coupons.  It  is  certainly  to  be  wished  that 
some  arrangement  may  be  adopted  which  will  be  satis- 
factory to  all  the  parties  concerned,  and  relieve  the  courts 
as  well  as  the  Commonwealth  of  Virginia,  whose  name 
and  history  recall  so  many  interesting  associations,  from  all 
further  exhibitions  of  a  controversy  that  has  become  a 
vexation  and  a  regret. 

Throughout  the  whole  of  the  controversy  the 
Richmond  Dispatch,  the  leading  daily  newspaper 
in  the  State  of  Virginia,  was  incessant  in  its  at- 
tacks upon  the  Supreme  Court  and  the  subordinate 
Federal  courts  for  their  course  in  the  matter.  It 
claimed  that  they  were  making  decisions  against 
the  State  in  direct  violation  of  the  eleventh  amend- 


SOME  REMINISCENCES  139 

ment;  that  they  were  a  usurping  judiciary,  and 
that  the  country  should  wake  up  and  drive  them 
out  of  office  before  they  deprived  the  people  of  all 
of  their  liberties.  There  is  no  doubt  that  a  consider- 
able part  of  the  nation  was  giving  attention  to  this 
clamor  of  the  Richmond  Dispatch,  and  that  news- 
papers in  many  parts  of  the  country  were  taking 
up  and  re-echoing  its  clamor.  There  is  no  body 
of  men  on  the  face  of  the  earth  that  keeps  its  ear 
closer  to  the  ground  than  the  Supreme  Court  of 
the  United  States,  and  it  is  always  glad  to  hear 
that  the  people  approve  of  its  actions  and  decisions. 

When  Judge  Bond  put  Attorney-General  Ayres 
in  jail  the  Dispatch  went  into  conniption  fits. 
"What!  put  the  attorney-general  of  a  sovereign 
State  in  jail !  These  usurping  Federal  judges 
should  be  impeached  and  discharged  in  disgrace 
from  their  offices."  This  was  the  staple  of  its 
clamor. 

Thinking  that  the  court  would  be  aroused  to 
resentment,  I  sent  a  copy  of  each  of  these  papers 
with  the  articles  marked  to  each  of  the  judges 
every  day.  But  the  anticipated  effect  does  not  seem 
to  have  been  produced. 

At  any  rate  the  court  commenced  to  trim  Ex 
parte  Ayres  down  almost  from  the  day  it  was  de- 
cided, until  on  March  23,  1908,  if:  decided  Ex  parte 
Young,  which  in  effect  cuts  away  the  last  vestige 
of  Ex  parte  Ayres.      The  United  States   Circuit 


i4o  SOME  REMINISCENCES 

Court  of  Minnesota  put  the  Attorney-General  of 
Minnesota  in  jail  for  bringing  a  suit  against  a  rail- 
road that  a  statute  of  Minnesota  commanded  him 
to  bring  for  the  purpose  of  putting  that  State's 
confiscating  rate  law  in  effect,  and  on  his  applying 
to  the  Supreme  Court  to  discharge  him,  on  the 
authority  of  Ex  parte  Ayres,  the  Supreme  Court 
did  not  do  a  thing  but  tell  him  he  might  stay  in 
jail.  And  if  Ex  parte  Young  left  anything  of  Ex 
parte  Ayres  the  recent  Virginia  rate  case  ends  that. 

However,  the  decision  killed  my  case  as  dead  as 
Julius  Caesar,  and  I  told  my  clients  they  must  settle 
at  once.  The  State  did  not  realize  how  badly  I 
was  hurt,  and  she  had  been  so  badly  clubbed  that 
she  was  in  a  very  good  humor  for  a  settlement. 
A  new  settlement  was  made,  which  gave  my  clients 
a  great  increase  upon  what  the  State  had  been  offer- 
ing them  and  this  enormous  controversy  came  to 
an  end. 

I  am  very  proud  of  the  result.  Unaided  and 
alone,  after  a  contest  of  eight  years,  I  had  driven 
the  State  of  Virginia  from  her  chosen  position,  a 
thing  that  it  took  the  Federal  Government  four 
years  to  do,  and  it  had  to  use  a  million  of  armed 
men,  and  at  the  cost  of  oceans  of  blood  and  four 
thousand  millions  of  dollars. 

The  court  ought  never  to  have  departed  in  the 
smallest  degree  from  the  rule  laid  down  by  Chief 
Justice  Marshall  in  Osborn  v.  The  Bank.     That 


SOME  REMINISCENCES  141 

wonderful  man  had  looked  over  the  whole  field, 
and  with  that  remarkable  prevision  that  nature  had 
endowed  him  with  he  had  no  doubt  seen  that  the 
greatest  danger  that  threatened  our  institutions 
was  the  peril  of  the  State  governments  falling 
under  the  control  of  men  unwilling  to  be  bound  by 
those  eternal  principles  of  fairness  and  justice  that 
rule  in  every  government  that  hopes  to  endure, 
and  he  had  foreseen  that  it  was  necessary  to  give 
such  a  construction  to  the  Constitution  of  the 
United  States  as  would  prevent  the  States  baffling 
justice  by  screening  themselves  behind  their  exemp- 
tion from  suit  as  sovereigns  when  arraigned  before 
the  national  tribunals  of  justice  upon  the  charge 
that  they  were  seeking  to  evade  the  obligations  of 
the  national  Constitution.  For  that  reason,  no 
doubt,  he  brought  the  court  to  adopt  the  principle 
announced  in  Osborn  v.  The  Bank.  The  history  of 
the  past  quarter  of  a  century  proves  how  far-seeing 
and  how  wise  the  great  Chief  Justice  was.  The  at- 
tempts of  the  States  to  confiscate  the  property  of 
the  railroads  by  cutting  their  rates  down  and  by 
other  devices  of  robbery  show  how  necessary  it  is 
that  the  rule  of  Osborn  v.  The  Bank  should  be 
adhered  to,  and  the  Supreme  Court,  seeing  the 
dreadful  blunder  it  made  in  the  Ayres  case,  has 
come  back  now  in  fact,  if  not  in  name,  to  the  prin- 
ciple announced  by  Marshall.  The  rule  thought 
out  and  announced  by  the  great  Chief  Justice  in 


142  SOME  REMINISCENCES 

Osborn  v.  The  Bank  is  the  most  important  an- 
nouncement ever  made  by  him.  With  it  in  force, 
the  States  can  never  evade  their  obligations  under 
the  Constitution.  With  it  abrogated  they  may  go 
on  evading  one  obligation  after  another  until  they 
finally  undermine  and  destroy  the  Constitution  and 
the  Union.  The  recent  confiscatory  rate  legisla- 
tion fully  illustrates  the  case. 

The  following  is  not  very  relevant,  perhaps,  but 
I  wish  to  relate  it  here,  anyhow.  It  is  well  known 
that  Mr.  Justice  Horace  Gray,  of  the  Supreme 
Court  of  the  United  States,  was  chief  justice  of 
Massachusetts  when  he  was  appointed  to  the  Su- 
preme Court  of  the  United  States.  At  the  John 
Marshall  centennial  he  came  to  Richmond,  Vir- 
ginia, and  delivered  an  address  on  Judge  Marshall. 
Conversing  with  a  friend  of  mine,  he  said,  "You 
know  Judge  Story  was  put  into  the  Supreme  Court 
to  curb  Judge  Marshall  in  his  centralizing  tenden- 
cies. But  he  had  not  been  there  long  before  the 
great  Chief  Justice  laid  his  mighty  hand  upon  his 
head  and  made  him  his  own."  My  friend  said, 
"Judge,  that  is  a  good  thing  to  put  in  your  address. 
Do  it."  "Oh,  no,"  responded  Judge  Gray,  "there 
are  too  many  Storys  living  in  Boston  for  me  to  put 
that  in  my  address." 

Judge  Bond  told  me  a  funny  thing  in  connection 
with  the  Ayres  case.  He  said  that  one  day  Cham- 
berlain,   the    restaurateur    in    Washington,    came 


SOME  REMINISCENCES  143 

over  to  Baltimore  and  asked  him  to  come  over  to 
Washington  and  dine  with  Henry  Watterson, 
editor  of  the  Louisville  Courier- Journal.  Bond 
accepted,  though  he  did  not  know  Watterson. 
When  he  got  there  he  found  Watterson  pretty 
hilarious.  Watterson  put  his  arm  around  Bond's 
shoulder  and  said,  "Bond,  I  was  always  with  you 
in  that  Virginia  fight,  but  did  you  not  know  that 
Uncle  Stanley  would  go  back  on  you?"  He  al- 
luded to  Justice  Stanley  Matthews,  and  Bond  said 
he  found  out  that  Matthews  had  some  sort  of  con- 
nection by  marriage  with  Watterson  that  caused 
him  to  call  Matthews  "Uncle  Stanley."  Matthews 
had  delivered  the  first  opinion  of  the  Supreme 
Court  which  hurled  defiance  and  death  at  the  State 
of  Virginia,  and  he  delivered  this  last  one  undoing 
all  of  Bond's  work  and  letting  the  State  completely 
out  of  the  difficulty. 

Bond  said  he  replied  to  Watterson,  "No,  how 
could  I  know  he  would  go  back  on  me?" 

"Because  he  has  gone  back  on  everybody  he  ever 
had  anything  to  do  with.  Did  he  not  do  so  and  so, 
and  so  and  so.  Did  he  not  preside  over  the  con- 
vention that  nominated  Greeley,  and  then  vote  for 
Grant?" 

Another  incident  pertaining  to  this  case  is  worth 
recording  I  think.  The  State  of  Virginia  paid 
Hon.  Roscoe  Conkling,  of  New  York,  $10,000  to 
argue  it  for  her  in  the  Supreme  Court  of  the  United 


i44  SOME  REMINISCENCES 

States.  Conkling  was  very  reserved  and 
haughty,  and  paid  no  more  attention  to  me  than 
if  I  had  been  a  poodle  dog.  The  argument  he 
made  before  the  court  was  on  the  level  of  a  school- 
boy's, and  after  he  had  been  speaking  about  half 
an  hour  without  saying  a  word  that  was  material, 
and  without  mentioning  the  eleventh  amendment, 
which  was  the  whole  case,  he  said,  "I  believe  that 
is  about  all  that  is  to  be  said,"  and  he  was  about  to 
take  his  seat.  But  the  Hon.  John  Randolph 
Tucker,  who  was  the  State's  other  representative, 
pulled  Conkling's  coat-tail  and  said  in  a  stage  whis- 
per, "But  you  have  said  nothing  about  the  eleventh 
amendment.  Discuss  that"  ;  and  he  said,  "Oh,  yes. 
And  I  forgot  to  mention  that  we  rely  upon  the 
eleventh  amendment  as  a  bar  to  the  suit,"  and  he 
sat  down.  When  I  came  to  reply  I  did  a  thing  that 
the  great  man's  worshippers  considered  sacrilege. 
I  said  no  one  had  undertaken  to  defend  the  consti- 
tutionality of  the  Virginia  act  of  assembly  ordering 
the  suits  to  be  brought  against  those  who  had  ten- 
dered coupons.  "Of  course,"  I  said,  "I  do  not 
take  the  humorous  argument  that  has  been  de- 
livered here  this  morning  seriously."  Conkling 
had  argued  that  the  act  was  constitutional  and 
thereupon  I  chuckled  to  myself,  "I  have  got  even 
with  him,  for  his  insolence,  anyhow." 

Though   not   particularly    relevant   to    anything 


SOME  REMINISCENCES  145 

I  have  been  talking  about,  I  want  to  record  here 
the  following:  I  lived  in  New  York  City,  prac- 
tising law  there  from  1880  to  1884,  and  I  had  a 
very  considerable  practice  there.  I  am  still  a  mem- 
ber of  the  New  York  bar  and  am  still  practising 
my  profession  there.  I  have  been  frequently  asked 
what  I  think  of  the  New  York  bar,  and  my  answer 
is  always  that  its  most  noticeable  feature,  with  the 
exception  of  a  few  individuals,  is  the  fact  that  the 
New  York  lawyer  thinks  all  the  law  is  in  New 
York.  He  thinks  that  the  Legislature  at  Albany 
passes  all  the  statutory  law  that  is  made,  and  that 
the  Court  of  Appeals  at  Albany  makes  all  the 
judge-made  law  that  is  made. 

I  once  met  with  a  curious  illustration  of  this. 
They  had  three  huge  volumes  published  in  1875  by 
Banks  Brothers,  called  The  Revised  Statutes  of 
New  York,  which  were  in  every  lawyer's  office  and 
were  treated  and  considered  as  the  authentic  version 
of  their  laws.  I  have  no  doubt  they  were  perfectly 
correct  so  far  as  New  York  law  is  concerned,  at 
any  rate,  I  never  heard  of  their  accuracy  in  that 
respect  being  questioned.  But  they  undertook  to 
print  the  Constitution  of  the  United  States  at  the 
beginning  of  the  first  volume,  and  gave  the  thir- 
teenth amendment  to  the  Constitution  in  the  fol- 
lowing language : 


146  SOME  REMINISCENCES 

ARTICLE  XIII. 

Section  i.  Slavery  being  incompatible  with  a  free 
government,  is  forever  prohibited  in  the  United  States; 
and  involuntary  servitude  shall  be  permitted  only  as  a 
punishment  for  crime. 

Now  the  thirteenth  amendment  really  reads  as 
follows : 

Neither  slavery  nor  involuntary  servitude,  except 
as  a  punishment  for  crime,  whereof  the  party  shall  have 
been  duly  convicted,  shall  exist  within  the  United  States 
or  any  place  subject  to  their  jurisdiction. 

A  trifle  of  this  sort  is  a  matter  of  no  moment 
to  a  New  York  lawyer,  since  it  concerned  the  laws 
of  barbarians  and  not  those  of  the  city  of  Rome. 

As  I  have  been  reviewing  the  transactions  of  the 
Supreme  Court  of  the  United  States  so  much  at 
large,  I  think  the  following,  for  the  truth  of  which 
I  can  vouch,  though  I  am  not  at  liberty  to  state  my 
authority,  should  be  recorded  here.  The  case  of 
Ex  parte  McArdle,  from  Mississippi,  7  Wallace, 
<;o6,  an  appeal  in  a  habeas  corpus  case,  brought  be- 
fore the  Supreme  Court  in  1868  the  constitution- 
ality of  the  reconstruction  acts  of  Congress,  those 
Pandora  boxes  from  which  such  untold  wretched- 
ness and  misery  to  the  people  of  the  Southern  States 
issued.  The  case  was  argued  and  submitted,  and 
the  court  decided  by  a  vote  of  five  justices  to  four 


SOME  REMINISCENCES  147 

that  the  laws  were  repugnant  to  the  Constitution 
of  the  United  States.  Amongst  the  justices  voting 
to  declare  the  laws  unconstitutional  was  Mr.  Jus- 
tice David  Davis,  of  Illinois.  Mr.  Justice  Field 
was  appointed  to  write  the  opinion  of  the  court. 
He  wrote  it  and  brought  it  before  the  Saturday 
conference,  and  read  it,  where  it  was  approved  of 
by  five  justices.  It  was  to  have  been  delivered  and 
handed  down  on  the  next  Monday.  Meanwhile, 
information  had  got  out  that  the  court  was  going 
to  destroy  all  of  these  odious  laws  on  the  coming 
Monday,  and  the  radical  partisans  in  Congress  had 
introduced  a  bill  to  take  from  the  Supreme  Court 
jurisdiction  to  hear  appeals  in  habeas  corpus  cases. 
A  motion  was  made  by  one  of  the  four  justices, 
after  the  opinion  had  been  read,  to  postpone  the 
delivery  of  the  opinion  from  the  following  Monday 
to  the  next  Monday  afterward,  and  upon  that  mo- 
tion Mr.  Justice  Davis  quitted  his  four  associates 
and  voted  with  his  four  adversaries,  making  five 
justices  for  the  postponement,  and  that  was  accord- 
ingly ordered.  In  the  meantime,  the  radicals 
rushed  their  bill  through  Congress,  and  when  the 
Supreme  Court  met  on  the  Monday  to  which  de- 
livery of  the  opinion  was  postponed  it  found  its 
authority  to  decide  the  case  taken  away  from  it. 
By  this  sort  of  juggling  the  Southern  States  were 
forced  to  undergo  the  awful  tortures  of  reconstruc- 
tion to  which  the  solid  South  is  by  far  more  due 


148  SOME  REMINISCENCES 

than  to  the  war.  That  noble  old  Roman,  Mr. 
Justice  Grier,  filed  this  solemn  protest  against  the 
proceeding: 

In  re  McArdle,  Protest  of  Mr.  Justice  Grier. 

This  case  was  fully  argued  in  the  beginning  of  this 
month.  It  is  a  case  that  involves  the  liberty  and  rights 
not  only  of  the  appellant,  but  of  millions  of  our  fellow- 
citizens.  The  country  and  the  parties  had  a  right  to  ex- 
pect that  it  would  receive  the  immediate  and  solemn  at- 
tention of  this  court.  By  the  postponement  of  the  case 
we  shall  subject  ourselves,  whether  justly  or  unjustly,  to 
the  imputation  that  we  have  evaded  the  performance 
of  a  duty  imposed  upon  us  by  the  Constitution  and  waited 
for  legislation  to  interpose  to  supercede  our  action  and  re- 
lieve us  from  our  responsibility.  I  am  not  willing  to  be  a 
partaker  either  of  the  eulogy  or  opprobrium  that  may 
follow  and  can  only  say:  Pudet  haec  opprobria  nobis,  et 
dlci  potuisse  et  non  potuisse  repelli. 

R.  C.  Grier. 

I  am  of  the  same  opinion  with  my  brother  Grier  and 
unite  in  his  protest. 

Field,  J. 

As  I  have  said,  I  am  not  at  liberty  to  say  how 
I  know  these  facts,  but  I  know  them  absolutely  to 
be  facts,  and  there  are  a  number  of  other  men  now 
living  who  also  know  them  to  be  facts. 

In  the  summer  of  1888  my  relations  with  my 
English  clients  required  me  to  go  to  London,  and 
I  took  my  wife  with  me.  She  was  then  a  very 
beautiful  young  woman  of  about  twenty-eight  or 


SOME  REMINISCENCES  149 

twenty-nine.  When  crossing  the  ocean  her 
steamer  rug  disappeared  and  she  could  not  find  it 
high  or  low.  She  reported  the  fact  to  me,  and 
said,  "I  must  have  it  produced."  I  said,  "My 
dear,  give  the  thing  up.  If  I  start  after  it  I  am 
going  to  run  it  down  to  the  bottom,  and  that  may 
raise  a  devil  of  a  racket  on  this  boat.  Let  the 
thing  drop,  and  when  we  get  to  London  I  will  buy 
you  another  one  worth  two  of  that."  But,  woman- 
like, she  was  not  going  to  lose  a  steamer  robe  if  she 
could  help  it,  and  so  she  demanded  that  I  should 
go  to  the  captain  about  it.  "Very  well,"  said  I, 
"you  see  now  what  is  going  to  happen."  I  started 
out  to  find  the  captain,  and  was  shown  him  up  on 
the  bridge  of  the  ship  in  the  act  of  taking  observa- 
tions of  the  sun  with  a  glass.  I  went  up  the  stair- 
way to  him,  and  said,  "Captain,  some  one  has  stolen 
my  wife's  steamer  robe,  and  I  come  to  you  to  have 
it  looked  up."  He  turned  on  me  in  utter  amaze- 
ment that  I  should  have  had  the  audacity  to  inter- 
rupt him  in  the  important  function  that  he  was 
engaged  in,  and  said,  "What  do  you  mean  by  com- 
ing up  here  and  interrupting  me  when  I  am  taking 
observations?"  I  said,  "I  mean  just  what  I  have 
said.  I  want  you  to  have  my  wife's  steamer  robe 
hunted  up."  "Go  down  from  here,"  he  said. 
"I'll  have  your  wife's  robe  looked  up."  "All 
right,"  said  I,  "that  is  all  I  want." 

In  a  short  time  the  robe  was  produced. 


150  SOME  REMINISCENCES 

"Come,"  said  I  to  two  friends,  "let's  go  to  the 
ward  room  and  take  a  drink  on  that.  That's  the 
way  to  hold  the  arbitrary  tyrants  up."  We  went 
to  the  ward  room,  and  all  three  of  us  ordered  our 
drinks.  I  noticed  that  the  bar-keeper  put  the 
drinks  of  my  friends  before  them,  but  put  nothing 
before  me.  "Why,  what's  the  matter?"  I  said. 
"Where  is  my  drink?"  "The  captain  has  given 
orders,"  he  replied,  "that  you  are  not  to  be  served 
anything  more  on  this  ship."  "The  devil  he  has !" 
said  I.  "He  thinks  I  was  drunk  when  I  called  on 
him  to  produce  my  wife's  robe.  I  was  no  more 
drunk  than  he  was.      But  we  will  see  about  this." 

When  we  went  out  of  the  ward  room  I  asked 
one  of  my  friends  to  go  back  and  buy  me  a  quart 
bottle  of  whiskey,  which  he  did,  and  I  took  it  to 
my  stateroom  and  had  a  drink  whenever  I  wanted 
it. 

On  the  ship  there  was  a  man  who  forced  himself 
on  my  acquaintance,  giving  the  name  of  Thompson, 
and  saying  that  Mr.  Cleveland  had  made  him  our 
consul  at  Liverpool,  where  he  had  served  all 
through  his  first  administration.  I  had  no  means 
of  finding  out  on  the  ship  whether  this  was  true  or 
not,  but  the  man  said  he  had  seen  me  often  in  New 
York  at  the  New  York  Hotel,  where  I  stayed  while 
residing  in  New  York.  I  did  not  remember  him 
at  all,  but  he  knew  all  about  me.  He  introduced 
me  to  a  friend  of  his,  a  Russian  count  named  Ga- 


SOME  REMINISCENCES  151 

bousky,  or  something  of  that  sort.  In  some  way  the 
two  got  acquainted  with  my  wife,  and  they  were 
most  persistent  in  their  attentions  to  us  all  the  rest 
of  the  way.  I  had  it  in  mind  to  try  and  organize  a 
company  while  in  London  to  develop  the  iron  ores 
of  Virginia,  which  are  very  valuable,  and  I  men- 
tioned that  fact  to  Thompson  or  the  Count.  Next 
morning,  after  arriving  at  London,  the  Count  ap- 
peared at  the  Langham  Hotel,  where  I  was  stay- 
ing, with  a  fat  Irish  friend,  who  insisted  that  I 
should  come  to  his  apartments  in  Piccadilly  that 
night,  when  he  would  have  Lord  Idisleigh  to  meet 
me  and  his  lordship  would  get  me  up  the  ore  com- 
pany in  a  jiffy.  I  was  a  little  suspicious,  but  I  went. 
I  found  the  Irishman  and  a  friend  of  his  playing  a 
simple  game  of  cards  with  a  shilling  for  the  stake. 
They  wanted  me  to  take  a  hand  while  we  were 
waiting  for  his  lordship,  which  I  did.  Soon  a 
Mr.  Harrison  arrived  with  his  lordship's  regrets 
that  he  was  unable  to  come  that  night.  Harrison 
at  once  took  a  hand  in  the  game,  and  commenced 
raising  the  stake,  and  continued  until  he  had  made 
the  bet  a  pound.  Before  you  could  say  Jack 
Robinson  I  had  lost  $30.  I  saw  I  had  been 
buncoed,  and  I  put  my  hand  down  and  said  they 
must  excuse  me,  that  I  was  going  to  leave.  They 
raised  a  great  outcry,  but  I  got  up  and  put  my  chair, 
a  stout  oaken  one,  in  front  of  me  and  commenced 
backing  to  the  door.     They  looked  as  though  they 


iS2  SOME  REMINISCENCES 

were  going  to  spring  on  me.  I  am  a  pretty  stout 
man  and  can  hold  my  own  fairly  well  in  a  personal 
encounter.  They  looked  me  over  and  saw  that 
somebody  was  going  to  get  his  neck  broken  if  they 
advanced  on  me  and  so  they  refrained.  I  backed 
to  the  door,  turned,  and  I  scampered  to  the  street 
about  as  fast  as  any  man  ever  did. 

Upon  the  steamer  we  made  the  acquaintance  of 
a  gentleman  named  Schoen,  from  Pittsburg,  who 
was  going  abroad  with  his  two  young  daughters. 
Through  us,  our  friends  the  Count  and  Thompson 
got  acquainted  with  the  Schoens.  After  staying 
in  London  a  week  or  two  myself  and  wife  went 
over  to  Paris.  Shopping  there  one  day  we  ran 
upon  the  Schoens.  Schoen  asked  me  to  leave  the 
ladies  shopping  and  go  with  him  to  a  restaurant; 
that  he  had  something  to  consult  me  about.  He 
then  told  me  that  he  had  met  with  the  Count  in 
Paris,  who  had  made  himself  very  charming  to 
them,  and  in  the  end  had  taken  him  to  a  musical 
festival  of  some  kind,  where  the  Count  met  with  a 
very  agreeable  acquaintance  of  his  to  whom  he  in- 
troduced Schoen.  That  in  the  course  of  the  even- 
ing Schoen  had  been  in  some  way  induced  to  take 
from  his  inside  vest  pocket  his  pocket-book  in 
which  he  had  $1,500;  that  when  he  returned  to 
his  hotel  he  looked  into  his  pocket-book  and  found 
there  was  nothing  there  but  a  piece  of  a  New  York 
Herald.      He    wanted    me    to    advise    with    him 


SOME  REMINISCENCES  153 

whether  he  should  have  the  Count  arrested.  He 
said  he  had  caused  a  detective  to  search  his  room 
and  found  nothing  there  but  a  pair  of  oid  soiled 
socks.  I  told  him  not  to  think  of  arresting  him; 
that  the  authorities  would  keep  him  there  to  tes- 
tify against  the  Count  and  no  one  could  tell  when 
he  would  get  away.  He  took  my  advice  and  pock- 
eted his  loss. 


CHAPTER    IV 

THE    TRUSTS 

The  beginning  of  public  alarm  in  the  matter  of 
trusts  was  about  1890,  though  as  late  as  1897  I 
had  not  come  to  share  in  that  alarm.  I  thought 
the  judicial  power  if  properly  applied  by  persons 
having  a  correct  idea  of  the  common  law  principles 
applicable  to  the  case  was  entirely  adequate  to  keep- 
ing the  trusts  within  their  proper  sphere,  in  which 
they  would  be  a  source  of  public  benefit  rather  than 
harm.  I  am  of  that  opinion  still  in  spite  of  all 
that  the  trusts  have  been  permitted  to  do  that  has 
so  aroused  public  resentment.  In  the  winter  and 
spring  of  1897  I  prepared  a  pamphlet  upon  this 
subject  in  which  I  set  out  my  views  of  it.  Just  as 
I  was  about  to  send  it  to  the  press  the  decision  of 
the  Supreme  Court  of  the  United  States  in  the  case 
of  United  States  v.  Trans-Missouri  Association, 
166  U.  S.  R.,  290,  was  announced.  This  was  the 
case  in  which  the  court  announced  that  it  must  en- 
force the  Sherman  anti-trust  act  just  as  it  was  writ- 
ten and  break  up  "every"  agreement  that  put  any 
restraint  upon  interstate  commerce.  I  had  never 
heard  that  any  such  case  was  pending  before 
the     Supreme     Court,     and     the     decision     when 


SOME  REMINISCENCES  155 

announced  was  a  great  surprise  to  me.  I  at  once 
saw  that  it  totally  ignored,  if  it  did  not  run  directly 
counter  to,  the  views  I  had  elaborated  with  so 
much  pains  and  labor  in  my  pamphlet.  I  went  to 
Washington  and  read  all  the  briefs  of  counsel  that 
had  been  used  in  the  case,  and  I  saw  there  was  no 
suggestion  of  the  views  I  entertained  in  any  of 
them.  That  was  in  the  spring  of  1897.  Another 
case  was  to  be  argued  in  the  Supreme  Court  in  the 
following  fall,  which  is  now  United  States  v.  Joint 
Traffic  Association,  171  U.  S.  R.,  505,  which  in- 
volved precisely  the  same  questions  as  had  been 
raised  in  United  States  v.  Trans-Missouri  Associa- 
tion just  decided.  So  I  determined  to  publish  my 
pamphlet  just  as  I  had  prepared  it,  in  the  hope 
that  its  presentation  of  the  case  might  have  some 
influence  in  the  decision  of  the  case  to  be  argued  in 
the  coming  fall.  I  accordingly  published  it  in 
April,  1897,  and  immediately  sent  a  copy  of  it  to 
each  judge  of  the  Supreme  Court,  and  I  also  at 
once  sent  a  copy  of  it  to  each  of  the  counsel  who 
were  to  argue  the  case  coming  on  in  the  fall, 
amongst  whom  was  Mr.  E.  J.  Phelps,  Minister  to 
England,  who  had  argued  the  case  of  United 
States  v.  Trans-Missouri  Association  just  then  de- 
cided, as  before  stated. 

At  that  time,  what  I  am  going  hereafter  to  treat 
as  the  harmful  trusts,  that  is,  the  enormously  rich 
corporations  that  crush  out  all  opposition  to  them- 


156  SOME  REMINISCENCES 

selves,  had  done  very  little  to  alarm  the  public  and 
to  arouse  the  resentment  against  them  that  is  so 
prevalent  now.  Accordingly,  my  pamphlet  was 
principally  devoted  to  a  discussion  of  agreements 
between  a  number  of  persons,  their  nature,  and 
their  proper  limitations. 

The  theory  I  put  forward,  briefly  stated,  was 
this,  in  substance :  If  an  act  was  good  and  legiti- 
mate when  done  by  one  person  that  act  could  not 
become  bad  and  unlawful  merely  because  it  was 
done  by  a  number  of  persons  instead  of  one  person. 
That  was  the  generally  accepted  theory  at  that 
time,  but  it  cannot  be  denied  that  the  tendency  of 
the  decisions  of  the  courts  since  has  been  the  other 
way.  See  Pickett  v.  Walsh,  78  No.  E.  Rep.,  753, 
a  decision  of  the  Supreme  Court  of  Massachusetts 
as  late  as  October,  1906.  I  still  think,  however, 
that  when  the  subject  is  properly  treated  it  will  be 
held  that  the  performance  of  the  act  by  numbers 
instead  of  by  one  is  innocent  if  there  be  no  evil  in- 
tent and  the  object  be  in  good  faith  to  promote  the 
interests  of  those  participating  in  it.  That  an  act 
must  be  judged  by  the  nature  of  the  act  and  not  by 
the  number  of  persons  concurring  and  acting  to- 
gether in  performing  it;  that  as  one  person  could 
lawfully  and  properly  compete  in  business  with 
another  person  even  to  the  point  of  wholly  de- 
stroying the  latter  by  fair  competition,  several  per- 
sons acting  together  could  properly  do  the  same 


SOME  REMINISCENCES  157 

thing,  and,  when  co-operating  thus,  they  could 
wholly  destroy  their  rival  in  the  business  provided 
they  did  it  by  fair  competition,  however  exacting 
the  competition  might  become;  that  though  one  or 
many  co-operating  together  might  compete  with 
his  or  their  rival  in  business  even  to  his  or  their 
rival's  destruction,  so  long  as  what  they  were  en- 
gaged in  was  really  fair  competition,  yet  our  laws 
forbade  one  or  many  from  attempting  the  destruc- 
tion of  a  person,  even  though  a  rival  in  business, 
from  ill  will  or  malice  toward  that  person.  I  illus- 
trated the  distinction  by  quoting  a  decision  of  the 
Court  of  King's  Bench  delivered  by  Lord  Chief 
Justice  Holt  two  hundred  years  ago  to  the  follow- 
ing effect: 

The  plaintiff  complained  of  the  destruction  of 
his  "decoy"  by  the  defendant  having  discharged 
guns  so  near  to  it  as  to  drive  away  the  ducks  that 
defendant  shot  for  a  living.  It  appeared  that  the 
defendant  had  no  occasion  to  shoot  guns  near  the 
plaintiff,  but  did  it  simply  and  alone  out  of  malice 
toward  the  plaintiff,  and  to  do  him  a  wanton  in- 
jury. The  court  held  that  the  defendant  had  done 
the  plaintiff  an  actionable  wrong  by  that  conduct 
for  which  he  was  liable  to  the  plaintiff  in  damages. 
It  is  obvious,  according  to  this  decision,  that  pur- 
pose and  intention  in  performing  the  act  become 
decisive  in  such  a  case. 

I  also  illustrated  the  proposition  by  stating  the 


158  SOME  REMINISCENCES 

case  of  Mogul  Steamship  Company  v.  McGregor, 
a  decision  of  the  House  of  Lords  of  England 
(App.  Cas.,  1 891,  p.  25)  as  follows: 

Several  lines  of  steamships  traded  to  China  all 
the  year  round.  The  trade  was  unprofitable  except 
in  what  is  called  the  "tea  season,"  when  it  was  very 
profitable.  The  losses  of  the  year  were  made  up 
and  a  profit  gained  by  the  freights  on  tea  in  "tea 
season."  Another  line  of  steamers  traded  to  Aus- 
tralia all  the  year  until  "tea  season"  came  on,  when 
its  steamers  were  diverted  to  Hankow  to  get  a  part 
of  the  profitable  tea  trade.  The  lines  which  traded 
to  China  all  the  year  round  entered,  therefore,  into 
an  agreement  called  a  conference,  by  which  they 
agreed  to  divide  out  freights  amongst  themselves, 
and  they  published  a  notice  to  all  merchants  in 
China  that  if  they  would  ship  everything  all  the 
year  round  by  one  of  the  conference  lines,  they 
would  be  allowed  a  rebate  upon  all  freights  at  the 
end  of  the  year  of  five  per  cent. ;  and  whenever 
one  of  the  steamers  of  the  Australian  line  came  to 
Hankow  the  conference  had  a  steamer  there  to  un- 
derbid it  on  freights;  so  that  whatever  the  Aus- 
tralian got  caused  it  a  loss.  Thereupon  the  Aus- 
tralian line  applied  to  the  English  courts  for  pro- 
tection, upon  the  ground  that  this  combination  of 
many  against  one  was  contrary  to  the  principles  of 
our  laws.  The  decision  of  the  highest  court  in 
England,  the  House  of  Lords,  was  that  the  agree- 


SOME  REMINISCENCES  159 

ment  was  a  perfectly  good  and  valid  one,  upon  the 
ground  that  no  malicious  and  wanton  attack  was 
being  made  upon  the  Australian  but  that  the  con- 
ference was  simply  seeking  to  advance  its  own  in- 
terests by  fair  and  open  competition. 

I  quoted  from  the  judges  as  follows.  Lord 
Justice  Field  said: 

My  Lords,  I  think  that  this  appeal  may  be  decided  upon 
the  principles  laid  down  by  Holt,  C.  J.,  as  far  back  as 
the  case  of  Keble  v.  Hickeringill,  1 1  Md.  74,  and  note 
to  Canington  v.  Taylor,  11  East,  514.  In  that  case  the 
plaintiff  complained  of  the  destruction  of  his  "decoy"  by 
the  defendant  having  discharged  guns  near  to  it  and  so 
driven  away  the  wild  fowl,  with  the  intention  and  effect  of 
the  consequent  injury  to  his  trade.  Upon  the  trial  a  ver- 
dict passed  for  the  plaintiff,  but  in  arrest  of  judgment  it 
was  alleged  that  the  declaration  did  not  disclose  any 
cause  of  action.  Holt,  C.  J.,  however,  held  that  the 
action,  although  new  in  instance,  was  not  new  in  reason  or 
principle,  and  well  lay,  for  he  said  that  the  use  of  a 
"decoy"  was  a  lawful  trade,  and  that  he  who  hinders  an- 
other in  his  trade  or  livelihood  is  liable  to  an  action  if  the 
injury  is  caused  by  a  violent  or  malicious  act.  "Suppose, 
for  instance,"  he  said,  "the  defendant  had  shot  in  his  own 
ground,  if  he  had  occasion  to  shoot,  it  would  have  been  one 
thing,  but  to  shoot  on  purpose  to  damage  the  plaintiff  is 
another  thing  and  a  wrong.  But,"  he  added,  "if  the  de- 
fendant, using  the  same  employment  as  the  plaintiff,"  had 
set  up  another  decoy  so  near  as  to  spoil  the  plaintiff's  cus- 
tom, no  action  would  lie,  because  the  defendant  had  "as 
much  liberty  to  make  use  of  a  decoy"  as  the  plaintiff.  In 
support  of  this  view  he  referred  to  earlier  authorities.  In 
one  of  them  it  had  been  held  that  by  the  setting  up  of  a 


160  SOME  REMINISCENCES 

new  school  to  the  damage  of  an  ancient  one  by  alluring 
'the  scholars,  no  action  would  lie,  although  it  would  have 
been  otherwise  if  the  scholars  had  been  driven  away  by 
violence  or  threats. 

It  follows,  therefore,  from  this  authority  and  is  un- 
doubted law,  not  only  that  it  is  not  every  act  causing 
damage  to  another  in  his  trade,  nor  even  every  intentional 
act  of  such  damage  which  is  actionable,  but  also  that  acts 
done  by  a  trader  in  the  lawful  way  of  his  business, 
although  by  the  necessary  results  of  effective  competition 
interfering  injuriously  with  the  trade  of  another,  are  not 
the  subject  of  any  action. 

Of  course  it  is  otherwise  as  pointed  out  by  Lord  Holt, 
if  the  acts  complained  of,  although  done  in  the  way  and 
under  the  guise  of  competition  or  other  lawful  right  are 
in  themselves  violent  or  purely  malicious,  or  have  for 
their  ultimate  object  injury  to  another  from  ill  will  to 
him  and  not  the  pursuit  of  lawful  rights. 

The  House  of  Lords  held  the  conference  to 
be  a  lawful  one.  As  appears  from  the  quotation 
from  Lord  Justice  Field's  opinion,  purpose  and  in- 
tention were  the  pivotal  facts  in  the  case. 

I  further  quoted  from  several  other  of  the  judges 
to  the  same  purport  and  effect  as  Lord  Justice 
Field's  opinion  and  I  said  that  there  was  the  test 
in  all  cases.  If  the  combination  imposed  no  more 
than  a  reasonable  restraint  upon  trade  and  aimed 
in  good  faith  at  bettering  the  condition  of  the  par- 
ties to  it,  it  was  a  good  and  lawful  combination, 
however  many  might  be  the  parties  to  it.  But  if 
the  combination  put  an  unreasonable  restraint  upon 


SOME  REMINISCENCES  161 

trade  or  aimed  at  doing  some  person  a  wilful  and 
malicious  injury  it  was  a  bad  combination  and  con- 
demned by  our  laws.  The  first  was  competition 
though  it  destroyed  the  rival.  The  second  was  not 
competition,  but  wanton  injury  to  another.  All 
men  then,  I  said,  had  a  right  to  make  any  combi- 
nation or  agreement  which  put  no  unreasonable 
restraint  upon  trade,  and  was  not  intended  to 
inflict  a  wanton  injury  upon  another,  if  the  agree- 
ment aimed  in  good  faith  at  bettering  the  con- 
dition of  the  parties  to  it.  But  no  man  had 
a  right  to  form  a  combination  which  put  an 
unreasonable  restraint  upon  trade  or  that  aimed 
at  inflicting  a  wanton  or  malicious  injury  upon 
another.  Freedom  to  make  such  lawful  con- 
tracts was,  then,  I  said,  of  the  very  essence  of 
citizenship  and  that  "liberty"  which  is  guaran- 
teed to  the  citizen  against  State  action  by  the 
fourteenth  amendment,  which  forbids  a  State 
to  deprive  any  person  of  life,  liberty,  or  property 
without  due  process  of  law;  and  against  Con- 
gressional action  by  the  fifth  amendment  to  the 
Constitution  of  the  United  States,  which  forbids 
Congress  to  deprive  persons  of  life,  liberty,  or 
property  without  due  process  of  law.  This,  I  said, 
was  the  test  that  should  be  applied  in  the  argu- 
ment that  was  to  come  on  in  the  fall  in  the  case  of 
United  States  v.  Joint  Traffic  Association.  If  the 
agreement  between  the  railroads  that  was  attacked 


i62  SOME  REMINISCENCES 

in  that  case  was  no  more  than  a  reasonable  re- 
straint upon  trade  and  was  one  in  which  the  rail- 
roads aimed  in  good  faith  at  bettering  their  own 
condition  and  had  no  purpose  to  do  a  wanton  in- 
jury to  another,  the  agreement  was  one  in  har- 
mony with  the  spirit  and  essence  of  our  laws,  and 
protected  from  hostile  Congressional  action  by  the 
fifth  amendment — as  one  of  the  "liberties"  guar- 
anteed to  the  citizen  by  the  Constitution,  and  if 
the  act  really  intended  to  forbid  "every"  contract 
that  restrained  trade  it  was  void,  as  under  the 
modern  law  reasonable  contracts  in  restraint  of 
trade  may  be  made,  and  the  right  to  make  them 
is  one  of  the  "liberties"  guaranteed  to  the  citizen 
by  the  Constitution  of  the  United  States.  The 
trusts,  I  insisted,  were  to  be  viewed  and  treated 
from  this  standpoint.  Allgeyer  v.  Louisiana,  165 
U.  S.  R.,  578;  Lochner  v.  New  York,  198  U.  S. 
R.,  45. 

Without  making  any  sort  of  acknowledgment 
to  me,  Mr.  E.  J.  Phelps  took  my  ideas  from  my 
pamphlet  and  incorporated  them,  without  my 
knowledge,  in  the  brief  that  he  presented  to  the 
Supreme  Court  in  the  case  of  United  States  v.  Joint 
Traffic  Association  already  spoken  of.  Mr. 
Phelps  is  now  dead  and  cannot  speak  for  himself, 
and  this  is  such  a  serious  charge  that  I  feel  com- 
pelled to  quote  from  his  brief  in  support  of  the 
charge.     He  says  at  pp.  38,  39:   "A  just  freedom 


SOME  REMINISCENCES  163 

of  contract  in  lawful  business  is  one  of  the  most 
important  rights  reserved  to  the  citizen  under  the 
general  term  of  'liberty,'  for  all  human  industry 
depends  upon  such  freedom  for  its  fair  reward." 
We  had  heard  nothing  of  that  in  the  preceding 
case  of  United  States  v.  Trans-Missouri  Associa- 
tion, although  Mr.  Phelps  was  one  of  the  counsel 
who  argued  it  and  filed  a  brief  in  it,  and  that  was 
one  of  the  principal  points  that  I  had  written  my 
pamphlet  to  establish.     On  page  18  he  said: 

In  the  anti-trust  act  the  plain  object  is  to  reach  and  put 
down  mischievous  trusts  in  restraint  of  trade  and  monop- 
olies. 

We  had  heard  nothing  of  that  in  the  previous 
argument  and  that  was  the  principal  thing  that 
I  had  written  my  pamphlet  to  prove.  On  page  43 
he  says : 

The  question  in  the  present  case  is  whether  the  agree- 
ment here  under  consideration  is  one  that  may  be  pro- 
hibited by  legislation,  without  infringing  the  freedom 
of  contract  and  the  right  of  property  which  the  Constitu- 
tion declares  and  protects. 

On  page  57  he  says: 

The  considerations  that  are  thus  seen  to  attend  and 
control  the  discussion  of  the  subject  conduct  by  in- 
evitable logic  to  this  conclusion:  The  true  test  of  the 
constitutionality  of  a  law  ivhich  abridges  the  freedom  of 
contract  must  necessarily   be  found  in  the  reasonableness 


1 64  SOME  REMINISCENCES 

and  justice  of  the  contract  abridged.  The  power  of  the 
legislature  to  prevent  unjust  and  mischievous  contracts 
where  the  public  welfare  requires  it,  must  be  admitted. 
The  constitutional  prohibition  against  the  deprivation  of 
liberty  and  property  does  not  prohibit  such  a  law,  because 
the  freedom  to  make  contracts  of  that  character  is  not  a 
part  of  the  liberty  of  the  citizen,  nor  is  it  a  right  of  prop- 
erty. But  when  the  contract  which  a  statute  undertakes  to 
forbid  is  not  unjust  or  unreasonable,  and  is  one  that  the 
general  principles  of  law  and  morality  sanction,  and 
much  more  when  it  is  seen  to  be  necessary  to  the  lawful 
enjoyment  of  lawful  property,  then  the  constitutional 
prohibition  designated  as  a  protection  against  precisely  such 
legislation,  is  directly  encountered.*  *  *  This,  then,  must 
be  the  criterion:  Is  the  contract  sought  to  be  pro- 
hibited one  that  by  the  general  principles  of  law  and  jus- 
tice it  is  the  right  of  the  party  to  make;  or  is  it  unjust,  un- 
reasonable and  mischievous  and  therefore  unlawful? 

The  italics  are  Mr.  Phelps's. 

Almost  all  of  Mr.  Phelps's  brief  is  devoted  to 
establishing  these  propositions,  although  there  was 
no  suggestion  of  them  in  his  argument  of  the  pre- 
ceding case,  and  these  are  the  identical  propositions 
that  my  pamphlet  was  written  to  establish.  Mr. 
Phelps  says  of  these  propositions  at  p.  58  : 

This  point  was  not  made  on  the  argument  of  the  Trans- 
Missouri  case  because  no  such  construction  of  the  act  was 
anticipated  by  counsel,  nor  was  it  considered  by  the  court, 
since  it  is  an  unvarying  rule  that  no  objection  to  the  con- 
stitutionality of  a  law  will  be  considered  unless  raised  by 
the  party  affected. 


SOME  REMIiNISCENCES  165 

I  think  it  would  have  been  far  more  candid  in 
Mr.  Phelps  if  he  had  said  the  points  were  not 
made  on  the  preceding  argument  because  he  had 
never  then  seen  Mr.  Royall's  pamphlet,  and  as  to 
what  he  says  of  the  court  not  considering  the  con- 
stitutionality of  a  law  unless  raised  by  counsel,  I 
never  heard  of  that  rule  before.  On  the  contrary, 
it  is  the  doctrine  of  the  court  that  the  unconstitu- 
tionality of  a  law  is  a  jurisdictional  question  (Ex 
parte  Yarborough,  no  U.  S.  R.,  651),  and  a 
further  doctrine  is  that  the  court  will  always  raise 
a  jurisdictional  question  itself.  (M.  C.  &  L.  Ry. 
v.  Swan,  in  U.  S.  R.,  379.) 

When  the  court  came  to  decide  the  case  it  gave 
this  stinging  rebuke  to  Mr.  Phelps : 

Regarding  the  two  agreements  as  alike  in  their  main 
and  material  features,  we  are  brought  to  an  examination 
of  the  question  of  the  constitutionality  of  the  act,  con- 
strued as  it  has  been  in  the  Trans-Missouri  case.  It  is 
worthy  of  remark  that  this  question  was  never  raised  or 
hinted  at  upon  the  argument  of  that  case,  although,  if  the 
respondent's  present  contention  be  sound  it  would  have 
furnished  a  conclusive  objection  to  the  enforcement  of  the 
act  as  construed.  The  fact  that  not  one  of  the  many 
astute  and  able  counsel  for  the  transportation  companies 
in  that  case  raised  an  objection  of  so  conclusive  a  char- 
acter, if  well  founded,  is  strong  evidence  that  the  reasons 
showing  the  invalidity  of  the  act  as  construed  do  not  lie 
upon  the  surface  and  were  not  then  apparent  to  those 
counsel. 


166  SOME  REMINISCENCES 

It  looks  as  if  the  court  had  read  the  pamphlet 
and  saw  through  the  whole  transaction. 

If  Mr.  Phelps,  instead  of  pirating  my  pamphlet, 
had  conferred  with  me  about  the  best  way  of  put- 
ting my  views  before  the  court,  he  might  have  won 
his  case,  for  the  court,  when  it  came  to  decide  the 
case,  yielded  in  great  part  to  the  argument  of  the 
pamphlet,  but  it  was  held  that  the  power  of  Con- 
gress to  regulate  commerce  among  the  States  over- 
rode even  the  guaranteed  "liberty"  of  the  citizen 
to  make  innocent  contracts.  That,  however,  if 
properly  treated  could  have  been  got  out  of  the 
way.  The  decision  is  of  vast  importance  in  this 
controversy  as  illustrating  the  unbounded  power  of 
Congress  in  the  matter  of  regulating  interstate 
commerce.  But  the  point  I  made  as  the  means  of 
regulating  the  trusts  has  never  yet  been  passed  on 
by  the  Supreme  Court  and  it  still  remains  to  be  ad- 
judicated, and  I  have  an  abiding  confidence  that  in 
view  of  the  absolute  necessity  for  an  abridgment 
of  the  Sherman  law,  as  I  am  going  to  show  farther 
on,  that  if  a  case  were  got  properly  before  the 
Supreme  Court  without  Mr.  Phelps's  botches  of 
the  argument,  a  modification  of  previous  doctrines 
that  would  give  relief  would  be  secured. 

It  must  not  be  supposed  that  I  have  digressed 
into  this  Phelps  incident  to  glorify  myself  and  en- 
deavor to  show  that  I  first  thought  this  matter  out 
and  placed  it  upon  its  true  foundation.     That  was 


SOME  REMINISCENCES  167 

far  from  my  purpose.  I  have  gone  into  it  in  order 
that  I  may  bring  out  plainly  and  distinctly  propo- 
sitions for  which  I  shall  contend  when  I  come  to 
discuss  the  subject  more  in  detail. 

Notwithstanding  the  fact  that  the  trusts  have  so 
outrageously  abused  their  rights  and  privileges 
since  my  pamphlet  was  published,  I  adhere  to  all 
that  was  said  in  it,  and  I  still  submit  that  the  lead- 
ing ideas  of  that  pamphlet  contain  the  true  lines 
of  the  trusts'  rights  and  the  true  suggestions  of 
how  they  should  be  controlled  so  as  to  render  them 
harmless  to  the  people,  while  preserving  to  them 
all  of  their  just  rights. 

There  is  one  incidental  matter,  however,  that 
should  be  understood  here.  Purpose  and  intention 
are  made  by  my  pamphlet  the  criterion  of  whether 
an  act  is  good  or  bad,  and  the  decision  of  the 
House  of  Lords  in  the  Mogul  Steamship  case  was 
accepted  by  the  world  as  an  endorsement  of  that 
proposition.  But  in  a  few  years  after  the  Mogul 
Steamship  case  was  decided  the  House  of  Lords 
decided  the  case  of  Allen  v.  Flood  (App.  Cas., 
1898,  p.  74),  which  seemed  to  overrule  the  Mo- 
gul case,  and  it  threw  the  whole  subject  again  into 
confusion.  The  decision  in  this  case  was  that  pur- 
pose and  intention  were  of  no  consequence  in  de- 
termining whether  an  act  was  good  or  bad.  This 
decision  produced  consternation  amongst  those 
who  had  to  deal  with  this  subject,  and  it  gave  rise 


168  SOME  REMINISCENCES 

to  the  sharpest  and  most  hostile  criticism.  The 
profession  seems  to  regard  it  as  overturned  by  the 
subsequent  case  of  Quinn  v.  Letham  (App.  Cas., 
1901,  p.  534),  which  is  regarded  as  re-establishing 
the  doctrine  of  the  Mogul  Steamship  case,  and  the 
still  subsequent  case  of  Giblin  v.  The  National 
Union  (1903,  2  K.  B.,  600)  seems  to  regard  the 
doctrine  of  the  Mogul  case  as  the  law. 

But  the  American  courts  seem  unanimously  dis- 
posed to  repudiate  Allen  v.  Flood  and  to  follow 
the  Mogul  case.  Allen  v.  Flood  was  distinctly 
repudiated  by  the  Supreme  Court  of  Illinois  in 
Doremus  v.  Henessey  (43  L.  R.  A.,  797),  by 
the  Supreme  Court  of  Wisconsin  in  State  v.  Dur- 
ner  (62  L.  R.  A.,  744),  by  the  Supreme  Court  of 
Massachusetts  in  Plant  v.  Woods  (51  L.  R.  A., 
339.  See  Gray  v.  Building  Council,  63  L.  R.  A., 
758),  by  the  Supreme  Court  of  Georgia  in  Em- 
ploying Club  v.  De  Brosser  Co.  (69  L.  R.  A., 
95),  and  the  doctrine  that  a  malicious  or  evil  in- 
tent will  make  an  act  unlawful  when  it  might  other- 
wise be  lawful  is  sanctioned  by  many  of  the  State 
courts  and  by  the  Supreme  Court  of  the  United 
States  in  Angle  v.  St.  P.  R.  R.,  151  U.  S.  R.,  1. 

So  that  I  think  I  can  fairly  say  that  it  is  the 
common  law  of  this  country  that  if  an  act  is 
clothed  with  a  good  intent  it  may  be  a  lawful  act, 
and  yet  if  it  be  done  with  an  evil  or  malicious  in- 
tent it  may  become  an  unlawful  act;    and  this  is  a 


SOME  REMINISCENCES  169 

point  to  be  borne  carefully  in  mind  while  consid- 
ering what  follows. 

I  come  now  to  deal  with  the  case  of  enormously 
rich  and  powerful  corporations  which  crush  out  all 
opposition  to  themselves  by  the  use  of  their  brute 
power.  These  are  the  trusts  which  have  so  mad- 
dened the  people,  and  these  are  the  trusts  that  it 
should  be  the  earnest  purpose  of  all  of  our  au- 
thorities to  control  and  force  to  operate  within 
their  legitimate  lines. 

The  thing  that  the  public  has  a  right  to  com- 
plain of  in  the  action  of  these  rich  corporations  is 
their  giving  their  goods  away  or  selling  them  be- 
low cost,  which  is  pro  tanto  the  same  thing,  for  the 
purpose  of  destroying  a  weak  rival  and  driving 
him  out  of  business.  No  doubt  every  citizen  can 
point,  in  his  own  experience,  to  cases  of  this  kind 
that  have  come  under  his  personal  observation.  I 
have  seen  many  cases  of  it.  Two  or  three  years 
back  a  corporation  was  organized  where,  in  part,  I 
live,  to  sell  and  carry  petroleum  oil  around  in  the 
cities  of  Manchester  and  Richmond  to  customers. 
As  soon  as  the  company  had  established  itself  and 
was  really  beginning  to  do  business  it,  of  course,  at- 
tracted the  attention  of  a  great  oil  company.  This 
put  it  under  a  regular  and  thorough  system  of 
espionage.  It  had  detectives  to  follow  the  first 
named  company's  wagons  and  find  out  just  where 
it  sold  oil.     Then  it  sent  its  own  wagons  around 


i7o  SOME  REMINISCENCES 

to  those  parties  and  offered  them  oil  always  far 
below  the  other's  prices,  and  it  kept  this  up  until 
the  first-named  company  saw  it  would  certainly  be 
destroyed,  when  it  sold  out  to  the  other  oil  com- 
pany at  what  it  could  get.  Where  I  live  is  one  of 
a  great  tobacco  company's  favored  regions.  I 
have  seen  processes  like  that  above  described  put 
into  operation  in  this  territory  by  that  company 
until  it  made  the  blood  of  every  self-respecting  citi- 
zen boil  with  indignation. 

I  have  known  attempts  to  be  made  to  defend 
this  course  of  action  in  these  rich  corporations. 
Their  advocates  have  said,  May  a  man  not  give 
away  what  is  his  own?  Shall  there  not  be  bargain 
counters  where  the  merchant  may  sell  his  old  stock 
at  what  he  can  get?  May  a  man  not  give  his  goods 
away  to  advertise  his  business?  Undoubtedly  all 
of  these  things  may  be  done  when  the  act  is  per- 
formed for  the  purpose  named.  But  this  is  the 
point  where  the  purpose  and  intent  so  strongly 
dwelt  on  heretofore  come  into  play.  When  a 
man  gives  his  goods  away  because  he  is  a  charitable 
man,  or  has  a  bargain  counter  to  sell  off  his  old 
stock,  or  sells  his  goods  below  cost  to  advertise 
them,  that  is  one  thing.  When  he  gives  his  goods 
away  or  sells  them  below  cost  for  the  purpose  of 
destroying  his  rival  and  driving  him  out  of  busi- 
ness, that  is  a  very  different  thing.  They  are  dif- 
ferent by  reason  of  the  purpose  and  intent.     The 


SOME  REMINISCENCES  171 

first  act  is  perfectly  legitimate  and  proper,  the 
second  is  illegitimate,  unfair,  unreasonable,  and 
opposed  to  the  elementary  principles  of  our  laws 
which  command  that  while  you  live  you  shall  let 
live. 

A  combination  of  persons  or  a  very  rich  cor- 
poration while  confining  itself  to  fair  and  legiti- 
mate competition,  has  a  right  to  make  all  the 
money  it  can  make,  and  the  more  it  makes  the  bet- 
ter it  is  for  society.  Our  rich  men  are  our  strength. 
They  furnish  the  capital  for  the  new  and  great 
enterprises  that  help  every  one  and  make  the  coun- 
try strong  and  great.  It  is  for  the  interest  of  the 
public  to  see  men  grow  as  rich,  in  a  fair  way,  as 
it  is  possible  for  them  to  become.  But  giving 
goods  away  for  the  purpose  of  destroying  a  rival 
is  not  fair  competition.  It  is  not  competition  at  all. 
It  is  the  exercise  of  brute  force  for  an  unworthy  ob- 
ject. There  is  no  such  thing  as  "competition"  un- 
less both  competitors  sell  their  goods  for  more  than 
they  cost.  It  is  not  a  matter  of  much  moment  how 
much  is  added  to  the  cost.  One  may  be  satisfied 
with  a  small  profit  and  another  may  want  a  larger 
one.  But  the  goods  must  be  sold  at  something 
more  than  the  cost  or  the  transaction  is  not  busi- 
ness and  competition,  unless  in  the  excepted  cases 
of  selling  off  old  stock  or  in  good  faith  advertising 
the  business. 

At  a  meeting  of  the  American  Bar  Association 


172  SOME  REMINISCENCES 

at  Hot  Springs,  Virginia,  in  1903,  I  presented  a 
paper  in  which  I  pointed  out  these  considerations 
(see  Report  of  American  Bar  Association  for 
1903,  p.  27),  and  I  urged  the  Association  to  take 
the  matter  up  and  throw  the  powerful  weight  of  its 
endorsement  in  favor  of  united  action  to  force  a 
discontinuance  of  this  practice.  If  the  Association 
had  taken  the  subject  up  I  have  no  doubt  the  coun- 
try would  have  got  relief  before  this  time.  But 
the  Association  seemed  indifferent  to  the  matter  and 
nothing  came  of  it.  Perhaps  it  contained  too  many 
"trust"  lawyers.  This,  however,  is  the  objective 
point.  This  is  the  citadel  to  be  assailed.  The  evil 
that  has  grown  up  in  the  country  is  the  practice 
of  the  rich  and  powerful  corporations  in  giving 
their  goods  away  to  destroy  a  weak  rival,  and  that 
is  the  practice  to  be  broken  up.  When  we  find  a 
way  to  put  an  effectual  ending  to  that  practice  we 
shall  cure  the  trust  evil.  Until  we  do  that  the 
country  will  suffer  from  the  trust  evil  while  it 
grows  worse  and  worse,  if  it  does  not,  in  the  end, 
swamp  our  civilization.  To  cure  the  evil  we  must 
look  at  it  from  the  standpoint  of  the  common  law, 
that  is  from  the  standpoint  of  the  nature  of  things. 
In  the  preceding  discussion  I  have  treated  the 
common  law  view  of  the  subject  and  shown  that 
the  common  law  will  not  tolerate  a  man  doing  an 
act  injurious  to  another  when  he  is  merely  and 
simply  animated  by  a  malicious  purpose  to  injure 


SOME  REMINISCENCES  173 

that  other.  The  word  "malice"  is  a  word  of  very 
broad  signification  in  the  law.  An  act  to  be  ma- 
licious need  not  be  inspired  by  personal  ill  will  or 
hatred.  It  is  enough,  in  the  eyes  of  the  law,  to 
make  it  malicious  if  it  is  one  taken  in  wanton  or 
reckless  disregard  of  another  man's  rights.  The 
legal  definition  of  malice  made  by  Mr.  Justice  Bay- 
ley  in  Bromage  v.  Prosser  (4  B.  &  C,  255)  is  uni- 
versally accepted  as  the  correct  definition  of  it. 
"Malice,"  said  he,  "in  common  acceptance  means 
ill  will  against  a  person,  but  in  its  legal  sense  it 
means  a  wrongful  act  done  intentionally,  without 
just  cause  or  excuse."  Every  such  act  as  that  is 
in  the  eye  of  the  law  malicious. 

Now,  for  the  great  trusts  to  sell  their  goods  in 
the  way  of  business  at  a  very  small  profit  is  com- 
petition with  a  rival.  But  for  them  to  give  then- 
goods  away,  or  sell  them  below  cost  or  at  such  a 
trifling  advance  over  cost  as  to  be  in  effect  selling 
them  at  cost  for  the  purpose  and  with  the  intent 
of  destroying  that  rival  and  driving  him  out  of 
business  is  not  competition,  but  the  doing  of  a 
"wrongful  act  intentionally  without  just  cause  or 
excuse"  and  therefore  malicious  in  the  eye  of  the 
law,  for  the  act  cannot  benefit  them  and  can  only 
harm  the  rival. 

It  is  answered  to  this  that  they  look  for  a  benefit 
when  they  shall  have  driven  the  rival  out  of  busi- 
ness.    But  the  benefit  is  not  the  direct  result  of  the 


174  SOME  REMINISCENCES 

act,  but  only  the  indirect  and  remote  result  of  it. 
The  direct  result  is  the  destruction  of  the  rival, 
and  any  benefit  that  may  come  to  them  will  be  the 
result  of  other  acts  done  after  the  rival  is  destroyed. 
It  is  in  effect  the  principle  discussed  by  the  Su- 
preme Court  of  the  United  States  in  the  E.  C. 
Knight  case  and  the  Hopkins  case,  where  the  court 
points  out  that  the  restraint  upon  commerce  in 
those  cases  is  not  the  direct  effect,  but  only  the  in- 
direct effect  of  the  agreements,  and  therefore  the 
agreements  were  not  within  the  meaning  of  the 
act  of  Congress  that  denounces  "agreements  in  re- 
straint of  trade." 

The  act  is  therefore  wrongful,  because  though 
an  act  they  would  have  a  right  to  perform  if  done 
with  a  worthy  intent,  it  is  an  act  injurious  to  an- 
other and  done  with  the  purpose  and  intention  of 
injuring  that  other  and  of  no  sort  of  benefit  to  the 
actor.  It  measures  up  exactly  to  Lord  Holt's 
duck  case,  which  contains  the  whole  law  of  com- 
petition. Nothing  has  been  added  to  the  discus- 
sion since  Lord  Holt  decided  that  case,  and  the 
doctrine  he  announced  has  stood  like  a  granite  wall 
ever  since  he  announced  it.  And  that  doctrine  is 
that  an  act  may  be  good  and  lawful  when  done 
with  an  honest  intent  and  may  yet  be  bad  and  un- 
lawful when  done  with  a  dishonest  intent  which  is 
malice  in  the  eye  of  the  law.  The  Supreme  Court 
of  Massachusetts  has  very  recently  come  very  near 


SOME  REMINISCENCES  175 

to  endorsing  this  idea,  if  it  has  not  actually  done 
so,  in  the  case  of  Pickett  v.  Walsh,  78  No.  E. 
Rep.,  p.   753,   decided  in  October,    1906. 

It  will  now  be  seen  why  I  dwelt  with  so  much 
emphasis  upon  the  importance  of  purpose  and  in- 
tention. It  is  the  crux  of  the  case.  When  the  trust 
gives  its  goods  away  as  an  honest  gift,  made  in 
good  faith,  as  a  gift,  it  is  within  its  plain  right. 
When  it  sells  them  below  cost  in  good  faith  to  ad- 
vertise its  goods  it  is  within  its  plain  rights.  But 
when  it  gives  them  away  or  sells  them  below  cost 
with  the  purpose  and  intention  of  destroying  its 
weak  rival  and  driving  him  out  of  business  it  is  not 
within  its  rights,  it  is  trespassing  upon  its  rival's 
rights,  and  it  is  doing  that  rival  a  common  law  in- 
jury and  a  wrong,  which  the  courts  ought  to  take 
cognizance  of.  My  pamphlet  of  1897  put  the  case 
correctly  then  in  saying  parties  had  a  right  to  do 
anything  intended  in  good  faith  to  be  for  their  own 
benefit,  but  that  they  had  no  right  to  do  any  act  in- 
spired by  malice  toward  another  person;  and  that 
word  "malice"  covers  the  whole  ground  when  it  is 
understood  in  its  legal  and  not  its  popular  sense.  It 
means  that  no  man  has  a  right  to  do  an  act  not  in- 
tended to  advance  his  own  interests,  but  simply  to 
cause  a  wanton  injury  to  another.  That  in  the  eye 
of  the  law  is  a  malicious  injury  to  that  other. 

But  whether  I  am  right  about  this  or  not,  there 
can  be  no  question  about  its  being  a  proper  subject 


176  SOME  REMINISCENCES 

for  legislation.  If  it  is  not  a  wrong  at  common 
law  it  is  certainly  a  matter  that  the  legislative 
power  can  make  a  wrong  and  provide  redress  for. 
To  provide  effectual  legislative  redress  there  must 
he  legislation  by  both  Congress  and  the  States. 
The  States  are  powerless  to  deal  with  interstate 
commerce  and  Congress  is  powerless  to  deal  with 
intrastate  commerce.  The  case  requires,  therefore, 
State  legislation  to  bring  to  an  end  the  wrongful 
conduct  of  the  trust  that  is  wholly  within  the 
boundaries  of  a  State.  It  also  requires  Congres- 
sional legislation  to  bring  to  an  end  the  wrongful 
conduct  of  the  trust  that  lives  on  interstate  com- 
merce. I  have  drawn  an  act  for  the  States  to  pass 
and  another  for  Congress  to  pass.  If  all  the  States 
will  enact  and  enforce  the  act  suggested  for  them 
and  Congress  will  enact  and  enforce  the  act  sug- 
gested for  it,  I  believe  the  trust  will  soon  be  curbed 
and  compelled  to  confine  its  operations  to  legiti- 
mate boundaries,  when,  instead  of  being  a  curse,  it 
will  become  a  public  blessing. 

I  therefore  suggest  to  the  States  and  to  Con- 
gress the  following  acts : 

Act  suggested  to  the  States. 

Section  i.  Be  it  enacted  that  it  shall  be  unlawful 
for  any  person,  partnership  or  corporation  to  give  away  in 
this  State,  any  goods,  wares,  or  merchandise  manufac- 
tured, created,  or  grown  in  this  State  and  not  intended 
for    commerce    with    foreign    nations    or    for    commerce 


SOME  REMINISCENCES  177 

among  the  several  States  or  with  the  Indian  tribes,  or  to 
be  used  in  the  same,  or  to  sell  the  same  in  this  State, 
at  or  below  cost  or  so  near  to  cost  as  to  be  in  effect  a 
sale  at  or  below  cost,  for  the  purpose  and  with  the  in- 
tention of  destroying  a  rival  in  business  doing  business  in 
this  State,  or  of  driving  him  out  of  the  business  he  is 
engaged  in  in  this  State. 

Section  2.  The  courts  of  equity  in  this  State  are 
hereby  given  power  and  authority  to  enjoin  any  of  the 
acts  made  unlawful  by  Section  1  of  this  act  and  to  grant 
any  other  proper  relief  under  same,  and  to  that  end  they 
are  authorized  to  require  any  person,  firm,  or  corporation 
sued  in  them  under  this  act  to  produce  their  books  and 
papers  and  to  answer  all  lawful  questions. 

Section  3.  A  person  injured  by  any  act  made  un- 
lawful by  Section  1  of  this  act  may  sue  the  party  injuring 
him  for  damages,  and  the  court  shall  give  him  judgment 
for  three  times  the  amount  of  what  the  jury  places  his 
damages  at,  and  also  for  a  reasonable  attorney's  fee. 

Section  4.  It  is  hereby  made  the  duty  of  the  attorneys 
for  the  commonwealth  to  put  this  act  into  force  and  ef- 
fect, and  they  are  hereby  required  to  bring  any  suit  under 
this  act  for  any  party  complaining  to  them  which  his  or 
its  case  may  justify. 

Section  5.  Any  person,  partnership  or  corporation 
violating  the  provisions  of  Section  1  of  this  act  shall  be 
deemed  guilty  of  a  misdemeanor.  Any  person  or  mem- 
ber of  a  partnership  found  guilty  of  such  misdemeanor 
shall  be  punished  by  fine  and  imprisonment  or  fine  or  im- 
prisonment at  the  discretion  of  the  court.  Any  corpora- 
tion found  guilty  of  such  misdemeanor  shall  be  fined  at 
the  discretion  of  the  court.  Any  officer,  agent,  or  director 
of  a  corporation  knowing  that  said  corporation  is  violating 
Section  1  of  this  act  and  aiding  therein  shall,  on  conviction, 


178  SOME  REMINISCENCES 

be  fined  and  imprisoned  or  fined  or  imprisoned  at  the  dis- 
cretion of  the  court. 

Act  Suggested  to  Congress. 

Section  i.  Be  it  enacted  that  it  shall  be  unlawful  for 
any  person,  partnership  or  corporation  to  give  away  any 
goods,  wares,  or  merchandise  intended  for  or  used  in  com- 
merce with  foreign  nations  or  intended  for  use  in  com- 
merce among  the  several  States  or  with  the  Indian  tribes, 
or  to  sell  the  same  at  or  below  cost  or  so  near  to  cost  as 
to  be  in  effect  a  sale  at  or  below  cost  for  the  purpose  and 
with  the  intention  of  destroying  a  rival  in  business  or 
driving  him  out  of  business. 

Section  2.  The  circuit  courts  of  the  United  States 
are  hereby  given  power  and  authority  to  enjoin  any  of 
the  acts  made  unlawful  by  Section  1  of  this  act  and  to 
grant  any  other  proper  relief  under  same,  and  to  that 
end  they  are  authorized  to  require  any  person  or  corpora- 
tion sued  under  this  act  to  produce  their  books  and  papers 
and  to  answer  all  lawful  questions. 

Section  3.  A  person  injured  by  any  act  made  un- 
lawful by  Section  1  of  this  act  may  sue  the  party  injuring 
him  for  damages  in  the  circuit  court  of  the  United  States 
for  the  proper  district,  and  the  court  shall  give  him  judg- 
ment for  three  times  the  amount  of  what  the  jury  places 
his  damages  at,  and  also  for  a  reasonable  attorney's  fee. 

Section  4.  It  is  hereby  made  the  duty  of  the  United 
States  district  attorneys  to  put  this  act  into  force  and  ef- 
fect, and  they  are  hereby  required  to  bring  any  suit  under 
this  act  for  any  party  complaining  to  them  which  his  or 
its  case  may  justify. 

Section  5.  Any  person,  partnership  or  corporation 
violating  the  provisions  of  Section  1  of  this  act  shall  be 
deemed  guilty  of  a  misdemeanor.  Any  person  or  member 
of  a  partnership  found  guilty  of  such  misdemeanor  shall 


SOME  REMINISCENCES  179 

be  punished  by  fine  and  imprisonment  or  fine  or  impris- 
onment at  the  discretion  of  the  court.  Any  corporation 
found  guilty  of  such  misdemeanor  shall  be  fined  at  the 
discretion  of  the  court.  Any  officer,  agent,  or  director  of 
a  corporation  knowing  that  said  corporation  is  violating 
Section  i  of  this  act  and  aiding  therein  shall  be  deemed 
guilty  of  a  misdemeanor  and  shall,  on  conviction,  be  fined 
and  imprisoned  or  fined  or  imprisoned  at  the  discretion  of 
the  court. 

Section  6.  No  person  shall  be  exempted  from  the  ob- 
ligation to  testify  concerning  violations  of  the  provisions 
of  this  act  upon  the  ground  that  his  testimony  might  tend 
to  incriminate  him.  But  no  person  shall  be  prosecuted 
for  any  violation  of  this  act  who  has  been  required  to  tes- 
tify concerning  violations  of  it. 

Section  7.  This  act  shall  be  in  force  from  its  pas- 
sage. 

It  will  be  argued  that  it  will  be  very  difficult,  if 
not  impossible,  to  probe  into  the  business  affairs  of 
a  trust  so  as  to  find  out  its  violations  of  these  acts. 
But  little  is  worth  accomplishing  if  there  is  no  dif- 
ficulty in  accomplishing  it.  If  it  is  impossible, 
however,  a  different  case  is  presented.  It  is  not 
impossible.  With  astute  counsel  provided  by  the 
Government  to  investigate  a  case,  aided  by  steno- 
graphers and  skilled  accountants  provided  by  the 
Government,  and  a  sufficient  fund  provided  by  the 
Government  to  enable  the  lawyer  to  command 
every  agency  that  is  necessary,  it  will  be  impossible 
for  the  trust  so  to  conceal  its  piracies  as  to  avoid 
detection.     But  suppose  it  is  able  to  conceal  some 


i8o  SOME  REMINISCENCES 

of  them.  Yet  many  would  be  unearthed,  and  if 
these  were  punished  to  the  limit  of  the  law,  the 
trusts  would  become  so  terrorized  that  they  would 
nearly,  if  not  entirely,  go  out  of  the  game.  It  is 
possible  there  may  be  no  need  for  State  legislation. 
Everything  touches  interstate  commerce  in  one  way 
or  another. 

THE    HARRIMAN    CONTROL 

There  is  one  other  branch  of  this  subject  which 
should,  perhaps,  receive  some  treatment  here.  Ac- 
cording to  the  newspaper  reports  of  the  investiga- 
tion made  by  the  Interstate  Commerce  Commission 
Mr.  E.  H.  Harriman  is  engaged  in  a  process  for 
controlling  a  great  portion,  if  not  all,  of  the  rail- 
roads that  may  well  arouse  the  astonishment  if  not 
alarm  of  the  people  of  this  country.  According  to 
those  reports  he  secured  a  majority  of  the  stock 
of  the  Union  Pacific  Railway  and,  placing  bonds 
upon  the  company's  property,  he  bought  with  the 
proceeds  of  those  bonds  a  majority  of  the  stock  of 
the  Southern  Pacific  Railway,  and  thus  controll- 
ing this  corporation  he  placed  bonds  upon  its  prop- 
erty, and  with  the  proceeds  of  these  bonds  he 
bought  a  majority  of  the  stock  of  the  Oregon 
Short  Line  and  the  Oregon  Railway  and  Naviga- 
tion Company,  and,  repeating  the  process  with  one 
road  after  another,  he  acquired  control  of  these 
roads  and  seven  others,  until  he  had  absolute  do- 


SOME  REMINISCENCES  1S1 

minion  over  25,000  miles  of  railroad,  besides  the 
Pacific  Mail  Steamship  Company,  the  Portland 
and  Asiatic  Steamship  Company,  and  the  steam- 
ship line  from  New  York  to  New  Orleans, 
formerly  known  as  the  Morgan  Line.  Of  course 
if  Mr.  Harriman  can  lawfully  do  this  he  may  con- 
tinue the  operation  until  he  dominates  the  entire 
transportation  of  the  United  States  and  its  trans- 
portation to  foreign  countries  also.  Do  our  insti- 
tutions permit  one  man  to  acquire  such  a  domina- 
tion as  this  over  the  entire  commerce  of  the  coun- 
try and  to  hold  it  against  any  legislative  or  judicial 
attack  upon  it?  If  they  do  there  is  some  strange 
shortcoming  in  our  institutions.  I,  for  one,  be- 
lieve that  such  an  anomalous  situation  as  this  can 
be  lawfully  controlled  and  that  Mr.  Harriman  can 
be  lawfully  forced  to  release  his  grip  upon  the 
country's  commerce. 

Upon  Mr.  Harriman's  side  it  will  be  said 
the  law  permitted  him  to  buy  a  majority  of 
the  shares  of  the  Union  Pacific  Railway's  stock, 
which  gave  him  a  lawful  right  to  place  bonds 
upon  its  property  for  any  purpose  sanctioned  by  its 
charter,  and  one  of  those  purposes  was  acquiring  a 
majority  of  the  stock  of  the  Southern  Pacific  Rail- 
way, and  so  on,  as  he  acquired  control  of  each 
subsequent  company;  that  he  has  simply  ac- 
quired property  by  the  exercise  of  a  legal  right  and 
that  it  would  be  spoliation  pure  and  simple  to  take 


i82  SOME  REMINISCENCES 

from  him  new  property  that  he  acquired  lawfully. 
That  argument  is  not  to  be  treated  lightly. 

In  dealing  with  this  subject  it  is  well  that  we 
should  have  before  our  minds  the  exact  facts  of 
the  Northern  Securities  Company,  the  way  in 
which  the  judges  of  the  Supreme  Court  of  the 
United  States  stood  in  that  case,  and  what  they 
said  about  it. 

The  case  was  this.  A  corporation  was  formed 
under  the  laws  of  New  Jersey,  called  the  Northern 
Securities  Company,  without  capital  (that  is,  $30,- 
000  was  paid  into  its  treasury  to  meet  expenses  of 
organization),  but  capable  of  issuing  stock  to  al- 
most any  extent  that  might  be  required.  The 
stockholders  of  the  Great  Northern  Railway  Com- 
pany and  the  stockholders  of  the  Northern  Pacific 
Railway  Company,  two  immense  railway  corpora- 
tions that  were  in  active  competition  with  each 
other  in  interstate  commerce,  exchanged  their  stock 
in  these  two  corporations  for  shares  of  stock  issued 
by  the  Northern  Securities  Company,  and  thus  this 
company  came  to  own  both  of  the  railways  and  the 
old  competition  between  them  was  brought  to  an 
end.  The  United  States  attacked  this  organization 
under  the  Anti-trust  Act  as  a  combination  and 
agreement  in  restraint  of  interstate  trade,  through 
ending  the  former  competition  between  the  two 
railways.  Mr.  Justice  Harlan  delivered  the  opin- 
ion of  four  justices,  holding  that  the  transaction 


SOME  REMINISCENCES  183 

was  a  combination  in  restraint  of  interstate  trade 
and  unlawful  and  void,  and  Mr.  Justice  Brewer 
delivered  his  own  opinion  in  which  he  concurred  in 
the  same  result.  Mr.  Justice  White  delivered  a 
dissenting  opinion  concurred  in  by  Chief  Justice 
Fuller  and  Justices  Peckham  and  Holmes,  and  Mr. 
Justice  Holmes  delivered  his  own  dissenting  opin- 
ion concurred  in  by  the  Chief  Justice  and  Justices 
White  and  Peckham. 

The  court  is  thus  seen  to  have  been  very  much 
split  up  in  the  reasons  given,  but  the  important 
fact  is  that  a  majority  of  the  judges  concurred  in 
holding  that  the  transaction  was  a  combination  in 
restraint  of  trade  under  the  Anti-trust  Act.  Mr. 
Justice  Brewer  in  his  concurring  opinion  seems  to 
have  anticipated  the  possibility  of  just  such  a  thing 
happening  as  has  happened  in  the  Harriman  case, 
and  while  prepared  to  condemn  it  at  once  if  it  hap- 
pened through  the  instrumentality  of  anything  like 
the  holding  company,  the  Northern  Securities 
Company,  he  seems  to  be  a  little  tender-footed  if 
it  happened  through  an  individual  acquiring  a  ma- 
jority of  the  stock  of  the  several  corporations 
through  ordinary  purchase  and  sale,  as  Mr.  Har- 
riman has  acquired  it.  Mr.  Justice  Harlan  uses 
language  frequently  in  the  course  of  his  opinion 
which  would  seem  to  indicate  that  he  and  the  three 
Justices  for  whom  he  spoke  were  prepared  to  con- 
demn such  a  transaction  even  though  accomplished 


1 84  SOME  REMINISCENCES 

as  Mr.  Harriman  accomplished  it,  if  its  effect  was 
to  put  restraints  upon  interstate  commerce.  He 
may  not,  however,  have  had  such  a  transaction  be- 
fore his  mind,  but  his  language  looks  very  much 
as  if  he  did  have  that  identical  transaction  in  view. 
I  will  quote  some  of  it.  At  page  354,  193  U.  S. 
R.,  he  says,  speaking  of  the  holding  company: 

However  that  company  may  have  acquired  for  itself 
any  stock  in  the  Great  Northern  and  Northern  Pacific 
Railway  Companies,  no  matter  how  it  obtained  the  means 
to  do  so,  all  the  stock  it  held  or  acquired  in  the  constituent 
companies  was  acquired  and  held  to  be  used  in  suppressing 
competition  between  those  companies.  It  came  into  exis- 
tence only  for  that  purpose. 

The  learned  judge  certainly  indicates  here  that 
he  considers  the  purpose  for  which  the  transaction 
was  got  up  of  the  utmost  importance,  and  it  cannot 
be  doubted  that  Mr.  Harriman  has  gone  into  his 
transaction  with  the  purpose  and  intention  of  sup- 
pressing competition  between  railways  engaged  in 
interstate  commerce  which  have  heretofore  been  in 
most  active  competition  for  that  commerce. 

On  page  350  he  says  : 

Whilst  every  instrumentality  of  domestic  commerce  is 
subject  to  State  control,  every  instrumentality  of  inter- 
state commerce  may  be  reached  and  controlled  by  national 
authority,  so  far  as  to  compel  it  to  respect  the  rules  for 
such  commerce  lawfully  established  by  Congress.  No 
corporate  person  can  excuse  a  departure  from  or  violation 


SOME  REMINISCENCES  185 

of  that  rule  under  the  plea  that  that  which  it  has  done  or 
omitted  to  do  is  permitted  and  not  forbidden  by  the  State 
under  whose  authority  it  came  into  existence.  We  repeat 
that  no  State  can  endow  any  of  its  corporations  or  any 
combination  of  its  citizens  with  authority  to  restrain  inter- 
state or  international  commerce  or  to  disobey  the  national 
will  as  manifested  in  legal  enactments  of  Congress. 

On  page  347  he  says : 

It  would  seem  that  the  government  which  represents 
all  cases,  when  acting  within  the  limits  of  its  powers,  com- 
pels obedience  to  its  authority.  It  would  mean  that  no  de- 
vice in  evasion  of  its  provisions,  however  skilfully  such  de- 
vice may  have  been  contrived,  and  no  combination  by 
whomsoever  formed,  is  beyond  the  reach  of  the  supreme 
law  of  the  land  if  such  device  or  combination,  by  its  opera- 
tion directly  restrains  commerce  among  the  States  or  with 
foreign  nations  in  violation  of  the  act  of  Congress  *  *  * 

In  short,  the  court  may  make  any  order  necessary  to 
bring  about  the  dissolution  or  suppression  of  an  illegal 
combination  that  restrains  interstate  commerce  (p.  346). 

There  is  much  more  in  the  opinion  to  the  same 
effect,  and  it  was  all  said  after  the  judge  had 
shown  (p.  334)  that  he  had  the  case  of  a  person 
buying  the  controlling  interest  in  the  stock  of  a 
railroad  corporation  or  in  several  railroad  corpora- 
tions distinctly  before  his  mind  as  one  of  the 
cases  in  which  a  device  might  be  got  up  to  effect  a 
restraint  upon  interstate  commerce. 


1 86  SOME  REMINISCENCES 

In  summing  up  what  the  decision  of  the  Su- 
preme Court  has  established  in  respect  to  this 
matter,  Mr.  Justice  Harlan  says  (p.  332),  That 
to  vitiate  a  combination  such  as  the  act  of  Congress 
condemns,  it  need  not  be  shown  that  the  combina- 
tion, in  fact,  results  or  will  result  in  a  total  sup- 
pression of  trade  or  in  a  complete  monopoly,  but 
it  is  only  essential  to  show  that,  by  its  necessary 
operation,  it  tends  to  restrain  interstate  or  inter- 
national trade  or  commerce  or  tends  to  create  a 
monopoly  in  such  trade  or  commerce  and  to  de- 
prive the  public  of  the  advantages  that  flow  from 
free  competition. 

We  have  it  laid  down  for  the  law,  then,  that  no 
device  which  may  be  resorted  to  will  close  the  eyes 
of  the  court,  and  prevent  its  ascertaining  just  what 
is  the  true  purpose  and  effect  of  any  transaction 
whatever  that  touches  interstate  commerce,  and 
that  if  it  finds  that  in  "its  necessary  operations  it 
tends  to  restrain  interstate  or  international  trade 
or  commerce,  or  tends  to  create  a  monopoly  in  such 
trade  or  commerce,"  it  is  condemned  by  the  law. 
I  do  not  see  how  Mr.  Harriman's  transactions  can 
stand  a  moment  when  subjected  to  this  test. 

And  as  to  the  plea  that  this  view  would  be  de- 
priving Mr.  Harriman  of  the  full  use  and  enjoy- 
ment of  his  property,  the  court  would  probably 
make  the  same  answer  that  it  made  in  the  Joint 
Traffic  Association  case  to  the  argument  that  all 


SOME  REMINISCENCES  187 

men  have  a  "liberty"  to  make  any  harmless  con- 
tract which  is  protected  by  the  Constitution,  "that 
is  true,  but  they  hold  that  right  subject  to  the  su- 
perior and  supreme  right  of  Congress  to  regulate 
commerce  between  the  States  and  with  foreign  na- 
tions." 

There  is  still  another  maxim  of  the  law,  the 
application  of  which  to  questions  of  this  sort  has 
never  yet  been  probed,  and  that  is  Salus  populi, 
suprema  lex — the  safety  of  the  people  is  the  su- 
preme law.  That  maxim  finds  expression  in  the 
preamble  to  the  Constitution  of  the  United  States, 
which  reads  as  follows : 

We  the  people  of  the  United  States,  in  order  to  form 
a  more  perfect  Union,  establish  justice,  insure  domestic 
tranquillity,  provide  for  the  common  defence,  promote  the 
general  welfare,  and  secure  the  blessings  of  liberty  to  our- 
selves and  our  posterity,  do  ordain  and  establish  this  con- 
stitution for  the  United   States  of  America. 

"Promote  the  general  welfare!"  The  Supreme 
Court  never  yet  has  told  us  what  limitations  cir- 
cumscribe those  words.  I  have  no  doubt  what- 
ever, in  my  own  mind,  that  as  the  safety  of  the 
people  requires  those  words  to  be  expanded,  they 
will  grow  larger  and  larger  until  they  take  in  every 
case  where  the  safety  of  the  people  is  put  in 
jeopardy,  and  Mr.  Harriman's  device  has  put  the 
safety  of  the  people  in  peril. 

But  after  all,  if  Congress  will  pass  the  act  for 


188  SOME  REMINISCENCES 

controlling  the  trusts  that  I  have  drawn  and  will 
amend  the  Sherman  law  as  I  suggest  farther  on, 
the  whole  subject  will  be  properly  regulated  and 
we  shall  have  no  more  trouble  of  any  consequence. 

In  conclusion  I  desire  to  say  that  in  my  judg- 
ment it  is  a  great  pity  President  Roosevelt  devoted 
so  much  of  his  energies  to  getting  Congress  to 
pass  the  rate  bill.  The  people  were  not  complain- 
ing of  rates,  for  they  were  not  so  high  as  to  cause 
discontent.  But  the  people  were  complaining  bit- 
terly of  rebates  granted  by  the  railroads  and  of 
unjust  discriminations  made  by  the  railroads,  and 
of  the  oppressions  and  injustices  of  the  trusts. 

If  the  President  had  devoted  his  great  talents 
and  energies  to  getting  Congress  to  give  the  people 
relief  in  these  matters  he  would  have  performed 
one  of  the  greatest  public  services  ever  performed 
by  a  ruler. 

It  is  not  possible  for  the  Interstate  Commerce 
Commission  to  regulate  interstate  rates.  There 
is  competition  between  all  interstate  lines,  and  com- 
petitors and  competition  alone  can  regulate  those 
rates.  These  interstate  rates  depend  upon  so  many 
thousands  of  different  considerations  that  skilled 
men  such  as  the  railroads  have  are  the  only  men 
on  earth  who  can  regulate  them.  A  commission 
is  as  incapable  of  dealing  with  them  properly  as  it 
is  of   regulating  the  tides.     The   interstate   rates, 


SOME  REMINISCENCES  189 

therefore,  should  have  been  left  to  competition,  and 
Congress  has  no  power  to  deal  with  the  intrastate 
rates.  They  must  be  dealt  with  by  the  State  com- 
missioners. Every  word,  therefore,  of  the  Hep- 
burn bill  that  deals  with  the  regulation  of  inter- 
state rates  is  vicious  in  its  tendencies;  but  every 
word  in  it  that  seeks  to  destroy  rebates  and  dis- 
criminations is  vital  and  valuable. 

SHERMAN    ANTI-TRUST    LAW 

This  act  in  its  present  state  is  the  most  vicious 
piece  of  legislation  that  ever  came  from  a  law- 
maker's hand.  It  deals  with  the  most  intricate 
and  important  relations  of  life  and  required  for 
its  draftsman  one  familiar  with  Mr.  Darwin's 
"Orgin  of  Species"  and  the  principles  of  evolution. 
But  I  doubt  if  its  author,  whoever  he  may  be, 
ever  had  the  slightest  familiarity  with  either.  The 
act  condemns  "every"  restraint  upon  trade,  and  the 
Supreme  Court  says  it  is  powerless  to  modify  that 
language  and  that  the  inferior  courts  must  carry 
the  act  out  literally. 

But  if  the  draftsman  of  the  act  had  had  any  sort 
of  appreciation  of  the  subject  he  would  have 
known  that  there  can  be  no  trade  at  all  unless  re- 
strictions are  put  upon  some  sort  of  trade  some- 
where. I  go  into  partnership  with  Jones  to  export 
tobacco  from  Richmond,  Virginia.  Jones  is  much 
addicted  to  dealing  in  stocks  and  I  make  him  agree 


190  SOME  REMINISCENCES 

that  he  will  cease  dealing  in  stocks  and  give  his 
undivided  attention  to  our  business.  We  have 
put  a  restriction  upon  trading  in  stocks  but  we 
have  greatly  aided  the  export  tobacco  trade.  And 
so  it  is.  There  is  no  co-operative  business  that 
does  not  put  some  sort  of  restraint  upon  some  sort 
of  trade  somewhere. 

In  the  case  of  the  United  States  against  the 
American  Tobacco  Company,  decided  by  the 
United  States  Circuit  Court  in  New  York  City  in 
November,  1908,  Lacombe,  J.,  says  of  this  act: 

Every  aggregation  of  individuals  or  corporations,  for- 
merly independent,  immediately  upon  its  franchise  ter- 
minates an  existing  competition :  whether  or  not  some 
other  competition  may  subsequently  arise.  The  act  as 
above  construed  prohibits  "every"  contract  or  combina- 
tion in  restraint  of  competition.  Size  is  not  made  the  test. 
Two  individuals  who  have  been  driving  rival  express 
wagons  between  villages  in  two  contiguous  States  who 
enter  into  a  combination  to  join  forces  and  operate  a  single 
line  restrain  an  existing  competition,  and  it  would  seem 
to  make  little  difference  whether  they  make  such  com- 
bination more  effective  by  forming  a  partnership  or  not. 

The  American  Tobacco  Company  is  made  up  of 
a  great  many  subsidiary  companies  that  it  has  ac- 
quired and  incorporated  with  itself  through  which 
it  does  an  immense  business,  employing  many 
thousands  of  agents.  All  of  these  subsidiary  com- 
panies did  business  in  competition  with  .each  other 


SOME  REMINISCENCES  191 

before  they  were  acquired  by  the  American 
Tobacco  Company.  When  the  decree  came  to  be 
framed  it  enjoined  each  of  these  subsidiary 
companies  from  doing  any  more  business  until  it 
was  shown  to  the  court  that  the  competition  that 
formerly  existed  between  them  had  been  restored. 
This  wiped  out  hundreds  of  millions  of  dollars  of 
property  and  ended  one  of  the  greatest  businesses 
of  the  country  by  the  stroke  of  a  pen.  If  this  is 
to  be  the  law  of  the  land,  then  all  co-operative 
business  is  ended. 

When,  therefore,  the  draftsman  of  the  Sherman 
law  forbade  "every"  restraint  upon  trade  he  ought 
to  have  known  that  he  was  killing  trade  and 
arraying  the  laws  of  Congress  against  the  laws  of 
nature. 

What  then  should  have  been  the  principle 
governing  the  draftsman  of  that  act?  He  should 
first  of  all  have  been  a  student  of  Darwin  and 
have  understood  the  principles  of  evolution.  He 
should  have  understood  the  preceding  principles 
governing  purpose  and  intention  and  he  should 
have  understood  that  the  principles  of  evolution 
do  not  condemn  the  destruction  of  a  person  by 
fair  competition,  but  that  they  inexorably  justify 
it.  He  should  have  known  that  all  they  condemn 
is  wanton  destruction  from  a  bad  motive.  He 
should  have  known  that  the  destruction  which  fair 
competition  brings  about  is  that  inexorable  destruc- 


i92  SOME  REMINISCENCES 

tion  which  we  mean  when  we  speak  of  the  survival 
of  the  fittest,  the  foundation  upon  which  all  nature 
rests.  He  should  have  known  that  as  this  is  the 
foundation  on  which  evolution  rests  it  is  the 
natural  right  of  the  citizen  to  make  any  agreement 
whatever  with  another  citizen  to  do  anything  that 
will  advance  his  interests,  that  is  not  intended  to  do 
a  wanton  injury  to  another,  even  if  it  destroys 
that  other  through  fair  competition,  and  that  that 
natural  right  is  therefore  one  of  the  "liberties"  that 
the  Constitution  intends  to  secure  to  the  citizen. 
He  should  have  known  therefore  that  when  he 
forbade  "all  restraints"  upon  trade  that  he  was 
laying  the  axe  at  the  root  of  trade,  that  he  was 
depriving  the  citizens  of  their  natural  "liberties" 
that  are  necessary  for  progressive  civilization,  and 
that  he  was  arraying  an  act  of  Congress  against 
the  laws  of  nature. 

What  then  should  have  been  the  first  sentence 
of  his  law?  It  should  have  forbidden  all  agree- 
ments to  impose  unreasonable  restraints  upon  trade 
and  all  agreements  that  sought  to  do  a  wanton 
injury  to  another  and  have  stopped  there,  whereby 
the  people  would  have  been  left  free  to  im- 
pose those  restraints  upon  trade  that  the  ex- 
perience of  men  have  shown  to  be  necessary  to 
trade,  and  they  would  have  been  left  free  to  make 
all  those  combinations  necessary  to  co-operative 
business;    but  would  have  been  forbidden  to  put 


SOME  REMINISCENCES  193 

in  operation  those  vicious  aims  that  are  not  in- 
tended for  their  own  benefit,  but  only  for  the 
wanton  destruction  of  their  fellow-citizens. 
Those  practices  are  what  the  great  trusts  live  on. 
They  cannot  beat  the  small  dealer  if  they  are  pre- 
vented from  killing  him  by  wanton  injuries  to 
him.  They  have  to  earn  dividends  upon  a  great 
mass  of  water  while  he  has  to  earn  on  solid  gold 
dollars  alone.  If  they  are  left  to  fair  competition 
the  independent  will  beat  the  trust  all  the  time. 
The  law  should  be  amended  now,  in  accordance 
with  these  views,  providing,  however,  that  rail- 
roads and  other  public  service  corporations  should 
not  be  allowed  to  enter  into  agreements  that  put 
restraints  upon  trade  without  the  consent  of  the 
Interstate  Commerce  Commission.  A  wide  line 
of  demarcation  should  be  drawn  between  corpora- 
tions engaged  in  private  business  and  railroads  and 
other  public  service  corporations.  The  corpora- 
tions engaged  in  private  business  should  be  dealt 
with  from  the  standpoint  discussed.  The  railroad 
and  other  public  service  corporations  should  be  held 
under  the  restraining  hand  of  government. 

It  ought  to  be  plain  now  where  the  financial 
panic  of  1907  came  from.  The  President  put  the 
Sherman  trust  law  into  effect  according  to  its  terms, 
as  he  should  have  done.  The  holders  of  stock  in 
industrial  corporations  that  were  doing  perfectly 
legitimate  business  said  to  themselves,  if  he  is  go- 

13 


i94  SOME  REMINISCENCES 

ing  to  enforce  that  law  according  to  its  terms  he 
will  destroy  my  corporation  along  with  the  others. 
I  am  going  to  sell  out  while  I  can.  This  brought 
all  the  stock  into  the  market  at  once.  But  the  same 
influence  that  made  the  owner  want  to  sell  operated 
on  the  mind  of  the  buyer  to  keep  him  from  buying, 
consequently,  all  were  sellers  and  there  were  no 
buyers,  and  the  market  sagged  on  down  lower  and 
lower  until  the  condition  of  panic  arose,  and  if  the 
law  remains  as  it  is  and  in  enforced  literally  as  it 
should  be,  there  will  be  many  more  panics  in  the 
future. 

Finally,  it  is  my  deliberate  belief  that  if  this 
subject  is  ever  brought  properly  before  the  Su- 
preme Court  there  will  be  such  a  modification  of 
what  has  been  done  as  will  give  the  country  relief. 
If  it  is  not,  then  Congress  must  so  modify  the  Sher- 
man law  as  to  make  it  tolerable.  It  is  intolerable 
now. 


CHAPTER  V 

FREE  SILVER  AND  POLITICS 

Toward  the  end  of  the  State  debt  fight,  Page 
McCarty  (the  same  man  who  fought  the  duel) 
started  a  debt-paying  daily  paper  in  Richmond 
called  The  Times.  A  gentleman  of  large  means 
in  Richmond,  named  Joseph  Bryan,  got  so  far 
drawn  into  this  enterprise  that  it  resulted  in  his 
coming  to  own  the  paper.  In  1890  he  offered  me 
the  place  of  editorial  writer  for  The  Times. 
Whilst  I  was  conducting  the  State  debt  fight  it  had 
been  one  of  the  terms  of  my  contract  with  my 
clients  that  I  should  devote  myself  exclusively  to 
their  business,  so  that  when  the  contest  ended  I 
was  entirely  without  a  clientelle.  I  accepted  Mr. 
Bryan's  offer  and  became  sole  editorial  writer  for 
The  Times. 

The  "free  silver"  issue  was  just  then  developing, 
so  that  I  had  a  noble  theme  to  devote  myself  to,  and 
I  went  into  that  contest,  against  free  silver,  with 
all  my  heart  and  soul.  It  was  my  business  to 
watch  all  the  currents  of  opinion,  and  I  looked 
over  many  newspapers  each  day  to  see  how  they 
were  setting.  When  Mr.  Cleveland  sent  his 
Venezuela  message  to  Congress  I  was  satisfied  free 


I96  SOME  REMINISCENCES 

silver  was  practically  dead.  The  country  was  re- 
covering from  the  disastrous  panic  of  1893  and  the 
clamor  of  the  pessimist  was  no  longer  attended  to. 
But  this  red  rag  shaken  in  Great  Britain's  face 
changed  everything.  The  business  interests  of  the 
whole  country  were  then  thrown  into  the  most 
violent  panic.  All  the  ground  that  had  been  re- 
covered was  lost  and  pessimism  became  the  con- 
dition everywhere.  William  J.  Bryan  arose  out  of 
the  conditions  brought  about  by  Mr.  Cleveland's 
Venezuela  message.  From  the  day  that  message 
went  into  Congress  free  silver  began  to  take  on 
a  new  life  until  it  grew  to  the  proportions  that  we 
saw  in  1896. 

What  could  have  induced  Mr.  Cleveland  to  do 
anything  so  foolish?  It  was  done  just  as  he  came 
back  from  one  of  his  duck-hunts. 

In  one  of  the  debates  which  followed  Senator 
Ben  Hill's  assault  in  the  Senate  on  Mahone's  de- 
mocracy Senator  Don  Cameron  of  Pennsylvania, 
who  was  a  great  friend  and  advocate  of  Mahone, 
came  rushing  from  the  restaurant  and  pitched  head- 
long into  the  discussion  in  an  utterly  irrelevant  and 
wholly  disconnected  way.  A  reporter  of  the  New 
York  World,  in  giving  an  account  of  it,  said, 
"Something  he  had  eaten  had  turned  his  face  very 
red."  I  have  always  thought  that  something  Mr. 
Cleveland  had  eaten  on  that  duck-hunt  had  upset 
his  usually  sound  judgment.      But  whether  this  be 


SOME  REMINISCENCES  197 

true  or  not,  Mr.  Cleveland  turned  the  trick.     He 
created  the  free  silver  of  1896. 

I  will  digress  a  little  at  this  point  to  tell  some 
incidents  connected  with  Mr.  Cleveland.  All  the 
world  knows  his  passion  for  fishing.  A  gentle- 
man named  Harrison  has  a  fine  trout  stream  near 
Leesburg,  Virginia.  Some  time  after  he  had  com- 
pleted his  great  fight  against  free  silver,  in  which 
every  Senator  and  Representative  from  Virginia 
had  opposed  him,  Mr.  Cleveland  paid  Mr.  Har- 
rison a  visit  to  fish  his  trout  stream.  In  the  middle 
of  the  day,  when  they  suspended  fishing  for  a 
julep  and  luncheon,  Mr.  Cleveland  said,  "Har- 
rison, these  Virginians  are  an  open,  frank,  out- 
spoken people  that  I  like.  But,  in  the  name  of 
common  sense,  where  do  they  get  their  public  men 
from?" 

As  every  one  knows,  the  Honorable  Grover  could 
be  a  gentleman  of  very  bad  manners  when  he  set 
his  mind  that  way.  In  1886  or  1887  I  had  a 
most  excellent  opportunity  for  finding  that  out. 
Some  well-meaning,  but  ill-advised  parties  who 
thought  they  might  intervene  and  procure  an  ad- 
justment between  the  State  and  her  creditors  got  up 
a  scheme  for  having  Mr.  Cleveland,  Mr.  Bayard, 
and  one  or  two  others  thrust  themselves  in  between 
the  two  and  try  to  bring  about  a  settlement.  Mr. 
Cleveland  was  immensely  popular  in  Virginia  at 
that  time,  and  I  thought  if  the  movement  was  ju- 


198  SOME  REMINISCENCES 

diciously  guided  something  might  be  made  to  come 
of  it,  but,  directed  by  the  parties  who  had  charge  of 
it  I  saw  nothing  but  disaster  to  all  concerned.  I 
determined,  therefore,  to  go  to  New  York  and  see 
Mr.  Cleveland  and  try  to  get  him  to  act  according 
to  my  advice.  He  was  then  a  member  of  a  law 
firm  of  which  Hon.  Wayne  McVeagh,  of  Pennsyl- 
vania, whom  I  knew  very  well,  was  also  a  member. 
I  went  to  the  office  and  asked  him  to  introduce  me 
to  Mr.  Cleveland  and  say  a  few  words  in  behalf 
of  my  project  to  him.  McVeagh  said,  "No,  go 
and  introduce  yourself  and  your  scheme  to  him; 
you  will  find  him  most  approachable,  and  he  does 
not  like  introductions."  I  went  to  his  office,  but 
Mr.  Cleveland  was  not  there,  and  I  left  my  card 
saying  I  would  return  later. 

In  an  hour  I  returned  and  was  shown  into  his 
office.  He  was  seated  at  his  desk  with  my  card 
before  him,  resting  against  the  ink-stand,  and  his 
head  resting  upon  his  arms, which  were  folded  on 
the  desk.  After  introducing  myself  and  being  re- 
ceived with  a  grunt  that  offended  me  at  the  outset, 
I  told  him  why  I  had  called.  He  growled  out  a 
few  words  with  a  manner  that  indicated  he  felt  no 
interest  in  me  or  my  mission,  and  would  be  glad 
if  I  would  go  out  as  soon  as  possible.  I  fired  up 
at  this  and  said  to  him  something  to  the  effect  that 
I  should  not  allow  his  bad  manners  to  deter  me 
from  explaining  the  duty  I  had  come  there  to  per- 


SOME  REMINISCENCES  199 

form.  I  said,  "Mr.  Cleveland,  unless  you  give 
proper  attention  to  this  very  important  matter, 
your  great  name  will  become  involved  in  what  will 
become  a  scandal."  He  grunted  out  something 
about  being  able  to  take  care  of  his  good  name,  by 
which  time  I  was  in  a  rage.  Turning  on  him  I 
said  something  to  the  effect  that  he  and  his  name 
might  go  to  the  bad  place  as  far  as  I  was  concerned, 
and  I  stalked  out  of  his  office.  I  spoke  of  the 
interview  freely  and  the  Southern  residents  of  New 
York  took  it  up  and  discussed  it  freely.  In  conse- 
quence a  reporter  of  the  Baltimore  Sun  called  on 
Mr.  Cleveland  and  asked  him  about  it.  The  Sun 
stated  that  he  said  he  did  not  take  in  the  situation 
or  appreciate  my  relation  to  the  subject.  To  a 
friend  of  mine  he  said  that  I  was  under  the  influence 
of  liquor,  which  was  not  a  fact,  and  I  was  sur- 
prised that  any  one  so  conversant  with  such  mat- 
ters as  Mr.  Cleveland  was  should  have  fallen  into 
that  error. 

It  must  not  be  supposed  that  I  am  inimical  to 
Mr.  Cleveland.  Upon  the  contrary,  he  did  this 
country,  in  my  opinion,  two  of  the  greatest  pieces 
of  service  ever  rendered  it,  when  he  whipped  free 
silver  and  suppressed  the  Chicago  riots, — and  the 
country  should  be  forever  grateful  to  him  for  those 
two  services.* 

*This  was  written  during  Mr.   Cleveland's  life,   but  I   let  it 
stand. 


200  SOME  REMINISCENCES 

I  return  now  to  free  silver. 

I  fought  free  silver  in  The  Times  with  all 
the  energies  of  my  nature,  and  we  had  a  following 
in  the  State  which  was  far  greater  than  any  one 
would  suppose  who  judged  by  the  election  returns 
of  November,  1896,  between  Bryan  and  McKinley. 
To  make  this  understood  I  must  go  back  a  little. 
When  Mahone  got  complete  possession  of  the  State 
he  set  up  one  of  the  most  infamous  governments 
that  any  people  ever  had  to  live  under.  Judges 
Claiborne  and  Mays,  as  before  related  in  this  work, 
will  serve  to  indicate  the  character  of  the  govern- 
ment that  Mahone  imposed  upon  the  people  of 
Virginia.  All  regard  for  decency  and  morality  was 
discarded,  and  the  government  of  the  State  became 
little  more  than  an  organization  for  plunder. 

In  the  fall  of  1883  a  new  Legislature  was 
elected  and  the  white  people  of  the  State,  roused 
to  such  a  fury  as  the  people  of  Virginia  have  never 
been  roused  to,  determined  to  elect  a  majority  of 
the  Legislature  at  all  cost.  I  have  never  seen  a 
people  so  united  and  so  resolved  as  the  white 
people  of  Virginia  were  at  that  election.  Just  be- 
fore the  day  of  election  the  intense  strain  gave 
way  in  Danville  and  there  was  a  riot  between  the 
whites  and  the  blacks.  It  has  never  been  known 
how  many  negroes  were  killed  in  this  riot,  but  it 
was  a  fearful  experience.  I  was  living  in  New 
York  when  the  day  of  election  came  on,  but  I  had 


SOME  REMINISCENCES  201 

retained  my  citizenship  in  Virginia  and  1  came  to 
Richmond  to  vote.  Business  was  suspended  for 
the  day,  and  there  was  something  in  the  air  that 
made  every  one  feel  that  we  were  in  the  presence  of 
some  overpowering  and  tremendous  event.  About 
the  middle  of  the  day  I  was  sitting  in  the  Rich- 
mond Club  with  some  thirty-five  or  forty  young 
men  and  we  were  discussing  the  progress  of  events. 
Presently  I  said,  "Gentlemen,  I  don't  care  who 
knows  it,  I  am  armed,"  and  I  pulled  out  a  large 
Colt's  revolver.  There  was  a  sort  of  smile  went 
around,  and  first  one,  then  another,  pulled  out  a 
pistol,  and  soon  it  appeared  that  every  man  in  the 
room  was  armed.  I  tremble  still  to  think  what 
would  have  been  the  consequence  if  a  riot  had  been 
started  that  day  in  Richmond,  for  the  whole  popu- 
lation was  armed  and  ready  for  a  riot. 

The  white  people  carried  the  election  and  came 
into  control  of  both  bodies  of  the  Legislature. 
They  thereupon  determined  that  they  would  never 
run  the  risk  of  falling  under  negro  domination 
again,  and  they  accordingly  amended  the  election 
laws  so  that  the  officers  of  election,  if  so  inclined, 
could  stuff  the  ballot  boxes  and  cause  them  to  make 
any  returns  that  were  desired.  Under  these  statutes 
the  elections  in  Virginia  became  a  farce.  We  got 
rid  of  negro  government,  but  we  got  in  place  of  it 
a  government  resting  upon  fraud  and  chicanery, 
and  it  very  soon  became  a  serious  question  which 


202  SOME  REMINISCENCES 

was  worse,  a  negro  government  or  a  white  govern- 
ment resting  upon  stuffed  ballot  boxes. 

This  condition  of  affairs  had  become  so  gener- 
ally known  that  Mr.  Hanna,  chairman  of  the  Re- 
publican National  Committee,  had  determined  to 
make  no  fight  in  Virginia  in  the  election  of  1896, 
but  to  let  the  State  go  for  Bryan  by  default. 
Early  in  September  two  leading  Republicans  in 
Virginia,  Edmund  Waddill,  who  was  appointed 
by  Mr.  McKinley  United  States  Judge  for  the 
Eastern  District  of  Virginia,  and  Col.  Jos.  P. 
Brady,  who  was  appointed  by  Mr.  McKinley  Col- 
lector of  Revenue  for  the  Eastern  District  of  Vir- 
ginia, came  to  me  and  asked  me  to  go  with  them 
to  New  York  to  see  Mr.  Hanna  and  ask  him  to 
send  the  necessary  funds  into  Virginia  to  make  a 
contest  there  in  the  coming  election.  The  Times' 
fight  for  the  gold  standard  had  produced  an  im- 
pression, and  we  had  a  considerable  following 
ready  to  split  with  the  so-called  Democratic  party 
on  the  question  of  free  silver. 

I  went  with  these  gentlemen  to  New  York,  and 
saw  Mr.  Hanna  at  the  Waldorf-Astoria.  He  said 
right  off,  in  the  most  positive  way,  that  the  elec- 
tions in  Virginia  were  all  fraudulent,  that  they 
would  cheat  him  out  of  any  vote  that  he  got,  and 
that  he  would  not,  therefore,  send  a  dollar  there 
or  take  any  part  in  the  contest  there.  I  then  asked 
him  to  give  me  a  hearing,  and  he  very  courteously 


SOME  REMINISCENCES  203 

did  so.  The  important  thing  that  I  told  him,  the 
thing  that  impressed  him  most,  was  that  we,  the 
gold-standard  men,  had  a  real  and  important  fol- 
lowing and  that  we  worked  against  and  would 
have  men  at  the  polls  to  prevent  cheating.  Upon 
my  representations  on  this  head,  he  finally  agreed 
to  make  a  fight  in  Virginia,  and  a  fine  fight  was 
made  there  by  the  Republican  party.  I  don't  know 
how  much  money  was  sent  there,  but  I  have  heard 
it  was  as  much  as  $160,000.  Further,  we  got 
up  a  Palmer  and  Buckner  organization  and  Mr. 
Hanna  gave  that  great  assistance.  I  thought, 
therefore,  that  we  had  a  very  fair  chance  to  carry 
the  State  for  the  gold  standard;  but  when  the 
election  came  off  it  was  found  that  all  the  money 
that  had  been  spent  had  just  as  well  have  been 
thrown  in  the  Potomac  River.  In  the  white  coun- 
ties, where  the  white  people  would  not  allow  them- 
selves to  be  cheated,  McKinley  beat  Bryan  in  many 
of  them  and  ran  up  with  him  in  all  the  others. 
But  in  the  negro  counties  (all  the  negroes  voting 
the  Republican  ticket),  Bryan  got  overwhelming 
majorities  and  thus  carried  the  State  by  about  20,- 
000  votes.  If  the  vote  had  been  counted  as  cast, 
McKinley  would  have  carried  the  State  by  a  large 
majority. 

The  greatest  blunder  that  was  ever  made  by  a 
political  party  was  the  act  of  the  Republican  party 
directly  after  the  war  in  conferring  upon  all  the 


2o4  SOME  REMINISCENCES 

negroes  the  right  to  vote.  It  takes  but  a  small 
portion  of  degenerate  white  men  in  any  Southern 
State,  added  to  the  whole  mass  of  the  negroes,  to 
make  a  majority  of  the  votes  in  the  State.  The 
white  people  of  a  Southern  State  simply  cannot 
submit  to  a  government  founded  on  the  negro 
vote.  They  will  suffer  extermination  before  they 
will  submit  to  it,  and  any  Northern  community  of 
white  men  would  do  the  same.  In  giving  the 
negro  the  vote  the  Republican  party  attempted  to 
do  something  which  is  simply  impossible  and  it 
has  received  absolutely  no  returns  for  the  foolish 
act. 

But  this  it  has  done.  The  white  people  of  the 
South  are  naturally  the  most  conservative  and  law- 
abiding  people  in  the  world.  Let  alone,  they 
would  never  ally  themselves  with  free  silver  or 
any  other  unsound  fad.  Not  only  so,  but  there  is 
a  very  large  element  amongst  them,  descendants 
of  the  old  Whigs,  and  protective  tariff  men,  which 
has  a  strong  penchant  for  the  Republican  party. 
If  there  had  been  no  negro  question  in  the  South 
to  force  all  the  white  men  to  stand  together  as  one 
man,  long  before  this  there  would  have  been  a 
reputable  Republican  party  in  every  Southern  State 
that  would  have  contested  the  control  of  each  with 
fair,  if  not  even,  chances  to  win.  Indeed,  I  believe 
that  each  Southern  State  would  before  this  have 
been  controlled  by  the  Republican  party.      In  giv- 


SOME  REMINISCENCES  205 

ing  the  whole  negro  population  the  right  to  vote 
the  Republican  party  therefore  inflicted  upon  the 
white  people  of  the  South  the  most  horrible  curse 
that  any  people  ever  suffered  from,  and  they  killed 
their  own  goose  of  the  golden  egg. 

I  am  happy  to  say  that  in  Virigina  we  have,  by 
constitutional  provisions,  so  eliminated  the  bad 
elements  of  the  suffrage,  both  white  and  black,  that 
fraudulent  elections  are  pretty  well  ended  and  we 
have  a  perfectly  sound  government  in  all  respects. 
I  am  happy  to  believe,  too,  that  my  editorial  ar- 
ticles in  The  Times  aroused  the  moral  elements  in 
the  State  and  brought  them  together  to  demand 
and  secure  the  abandonment  of  frauds  in  elections. 

With  one  more  incident  in  my  life  I  shall  close 
these  reminiscences. 

In  1907  The  Neale  Publishing  Company,  of 
New  York  and  Washington,  published  for  me  a 
small  volume  entitled  "A  History  of  Virginia 
Banks  and  Banking  Prior  to  the  Civil  War,  with 
an  Essay  Upon  the  Banking  System  Needed." 
The  prevalent  notion  about  the  State  Banks  that 
the  old  long-settled  States  had  prior  to  1861  is 
very  erroneous.  Virginia  had  one  of  the  best  (if 
not  the  best)  banking  systems  that  ever  existed, 
and  I  have  given  a  full  account  of  it  in  the  volume 
referred  to.  But  the  most  valuable  part  of  it,  if 
it  has  any  value,  is  a  discussion  in  the  third  chapter 


206  SOME  REMINISCENCES 

of  the  elementary  principles  involved  in  money  and 
banking. 

My  intercourse  with  men  has  taught  me  that  a 
very  great  proportion  of  them  think  that  com- 
merce— trade — is  carried  on  by  exchanging  money, 
coins  or  currency  notes — for  commodities.  This  is 
another  error  and  one  that  is  productive  of  the 
most  injurious  consequences.  Commerce,  in  its 
large  sense,  is  nothing  but  the  exchange  by  one 
locality  of  its  surplus  commodities  for  the  surplus 
commodities  of  another  locality.  The  said  ex- 
change is  effected  by  transferring  upon  the  books  of 
the  banks  the  dollar  values  of  each  commodity  in 
the  form  of  credits.  Thus,  Jones,  in  the  city  of 
Richmond,  Virginia,  buys  10,000  pounds  of  cotton 
at  10  cents  a  pound — $1,000 — from  Thompson, 
of  Wilmington,  North  Carolina.  Jones  sends 
Thompson  his  check  on  the  First  National  Bank 
of  Richmond  for  $1,000.  Smith,  of  Wilmington, 
buys  10,000  pounds  of  bacon  from  Dixon  of  Rich- 
mond at  10  cents  a  pound — $1,000 — and  sends 
him  his  check  on  the  First  National  Bank  of  Wil- 
mington in  payment.  Thompson  deposits  Jones's 
check  in  the  First  National  Bank  of  Wilmington 
and  it  sends  the  check  to  the  First  National  Bank 
of  Richmond  for  collection  that  is  under  an  order 
for  the  latter  bank  to  send  $1,000  in  money  to  the 
Wilmington  bank.  On  the  day  that  check  gets  to 
the  Richmond  bank,  Dixon  deposits  Smith's  check 


SOME  REMINISCENCES  207 

in  it  which  was  an  order  for  the  Richmond  bank 
to  send  it  to  the  Wilmington  bank,  with  directions 
that  the  Wilmington  bank  should  send  to  Rich- 
mond $1,000  in  money.  But  the  Richmond  bank, 
on  looking  into  the  case,  asks,  Why  go  through 
all  this  torn-foolery  of  sending  $1,000  to  Wilming- 
ton and  bringing  $1,000  from  Wilmington  here? 
We  will  settle  the  matter  thus — we  will  take  the 
credit  on  our  books  for  $1,000  which  Jones  has, 
and  transfer  it  to  the  credit  of  Dixon,  and  thus  he 
will  get  paid  for  his  bacon;  and  we  will  send 
Smith's  check  back  to  the  Wilmington  bank  and  tell 
it  to  transfer  the  $1,000  credit  on  its  books  that 
Smith  has  to  the  account  of  Thompson,  and  thus 
Thompson  will  be  paid  for  his  cotton. 

This  is  done,  the  transaction  is  closed  up  to  the 
satisfaction  of  every  one,  and  not  a  dollar  of  money 
has  been  used  in  it.  The  thing  at  bottom  was 
nothing  but  an  exchange  of  some  bacon  that  Rich- 
mond had  no  use  for,  for  some  cotton  that  Wil- 
mington had  no  use  for,  effected  by  exchanging  the 
dollar  value  of  the  commodities  on  the  books  of 
the  banks  by  transferring  credits  on  those  books 
from  one  person  to  another.  This  is  commerce. 
If  ninety-nine  transactions  in  every  one  hundred  in 
commerce  were  run  down  to  the  bottom  they  would 
be  found  to  be  in  substance  the  Richmond  and 
Wilmington  transaction. 

Now  the  part  that  the  dollar  plays  in  these  trans- 


208  SOME  REMINISCENCES 

actions  is  the  all-important  one,  and  it  is  the  point 
that  the  great  body  of  the  people  are  absolutely 
ignorant  on,  and  from  their  ignorance  on  it  has 
proceeded  the  awful  financial  disasters  that  the 
country  has  suffered  from. 

Bearing  in  mind  the  main  proposition  that  com- 
merce is  exchanging  one  commodity  for  another, 
how  are  we  to  get  a  basis  for  those  exchanges? 
How  is  a  man  to  know  the  number  of  bushels  of 
wheat  that  are  to  be  given  for  a  certain  number  of 
bushels  of  corn,  or  how  many  pounds  of  cotton  are 
to  be  given  for  a  certain  number  of  pounds  of 
bacon?  To  determine  this  there  must  be  a  third 
agency,  and  this  third  agency  we  call  "the  dollar." 

The  United  States  Government  has  enacted  by 
law  that  25  8-10  grains  of  gold,  9-10  fine,  shall  be 
"the  dollar,"  and  that  it  shall  be  the  standard  of 
value.  It  could  have  called  it  a  "sequin"  or  any- 
thing else,  but  it  chose  to  call  it  a  "dollar."  Ac- 
cordingly, all  men  interested  in  wheat  got  together 
and  determined  that  in  the  state  of  demand  for 
and  supply  of  wheat,  one  bushel  of  wheat  was  the 
equal  in  value  of  25  8-10  grains  of  gold,  9-10  fine, 
in  the  then  state  of  demand  for  and  supply  of  gold. 
Mark  this  statement  well,  for  it  is  at  the  bottom 
of  the  whole  business  and  of  all  commerce.  Then 
all  the  men  interested  in  corn  got  together  and  de- 
termined that  in  the  then  state  of  the  supply  of 
and   demand   for  corn   two  bushels  of  corn  were 


SOME  REMINISCENCES  209 

the  equal  in  value  of  25  8-10  grains  of  gold,  9-10 
fine,  in  the  then  state  of  demand  for  and  supply  of 
gold.  It  was  to  say  that  a  bushel  of  wheat  was 
at  that  time  worth  a  dollar,  and  that  a  bushel  of 
corn  was  at  that  time  worth  fifty  cents.  That 
being  established  we  had  a  basis  for  exchanging 
wheat  for  corn. 

Now  of  course  it  is  a  mere  figure  of  speech  to 
say  that  all  these  men  "got  together."  The  idea 
I  intend  to  convey  is  that  the  price  established 
is  the  result  of  the  codification  of  opinions  by  the 
law  of  supply  and  demand.  The  value  of  the 
dollar  then  is  established  by  comparing  the  gold 
in  it  with  a  commodity  under  the  law  of  supply 
and  demand.  It  has  been  much  contended  in  high 
quarters  that  the  value  of  the  dollar  depends 
upon  the  labor  required  to  produce  it.  But  you 
may  put  any  amount  of  labor  upon  the  production 
of  the  gold  in  a  dollar,  but  if  there  is  no  demand 
for  the  gold,  it  will  have  no  value.  The  value  of 
the  dollar,  as  the  value  of  anything  else,  depends 
upon  the  law  of  supply  and  demand. 

This  great  fact  is  now  to  be  noted.  The  im- 
portance of  the  dollar  is  not,  as  generally  believed, 
as  a  purchasing  agency,  but  as  a  standard  of  value 
for  creating  a  basis  on  which  commodities  may  be 
exchanged.  When  that  basis  is  established  busi- 
ness has  little  further  use  for  the  dollar.  Business 
carries  itself  along  after  that  by  exchanging  com- 

14 


210  SOME  REMINISCENCES 

modities  by  transferring  their  credit  values  upon 
the  books  of  the  banks. 

It  is  absolutely  necessary,  for  a  stable  currency, 
and  for  peace  and  order  in  business,  that  these 
and  their  cognate  principles  should  be  under- 
stood by  the  voters  of  the  nation;  and  yet  it  is 
my  opinion,  judging  from  my  own  experience  in 
my  contact  with  men,  that  there  is  not  one  man  in 
one  thousand  that  understands  them.  In  my  re- 
cent book,  "A  History  of  Virginia  Banks  and 
Banking,"  I  have  undertaken  to  explain  and  illus- 
trate these  principles  in  a  way  that  will  enable  the 
simplest  and  plainest  citizen  to  understand  them. 
If  I  could  only  feel  that  this  explanation  will  be 
conveyed  to  the  great  mass  of  the  voters  so  as  to 
end  all  chance  of  a  future  William  J.  Bryan,  I 
should  feel  that  I  had  not  lived  in  vain. 


